EX - 4.1
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement") is entered into as of the
last date set forth on the signature page hereof by and between Florida Banks,
Inc., a Florida corporation (together with its successors and permitted assigns,
the "Issuer"), and the undersigned investor (together with its successors and
permitted assigns, the "Investor"). Capitalized terms used but not otherwise
defined herein shall have the meanings set forth in Section 9.1.
RECITALS
Subject to the terms and conditions of this Agreement, the Investor
desires to subscribe for and purchase, and the Issuer desires to issue and sell
to the Investor, all shares of the Issuer's Series C Preferred Stock, par value
$100.00 per share (the "Preferred Stock"). The Issuer is offering an aggregate
of Fifty Thousand (50,000) shares of Preferred Stock in a private placement to
the Investor at a purchase price of $100.00 per share and on the other terms and
conditions contained in this Agreement (the "Private Placement").
The designations, preferences, limitations and relative rights of shares
of Preferred Stock are stated in the Articles of Amendment to the Second Amended
and Restated Articles of Incorporation of the Issuer, a copy of which is
attached as EXHIBIT A.
The Preferred Stock has been offered only to "accredited investors" (as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act"). The definition of the term "accredited
investor" is attached as EXHIBIT B.
The Closing (as defined herein) for the Private Placement is expected to
be on December 31, 2002, unless extended by the parties hereto.
THE PREFERRED STOCK HAS NOT BEEN REGISTERED WITH, OR APPROVED BY, THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE OR
OTHER JURISDICTION, AND NO COMMISSION OR STATE SECURITIES LAW ADMINISTRATOR HAS
PASSED UPON THE ACCURACY OR ADEQUACY OF ANY INFORMATION PROVIDED TO THE INVESTOR
BY THE ISSUER ENDORSED THE MERITS OF THE PRIVATE PLACEMENT. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
NOTICE TO FLORIDA RESIDENTS:
A SALE IN FLORIDA IS VOIDABLE BY THE PURCHASER IN SUCH SALE WITHIN 3 DAYS
AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE ISSUER
OR, AN AGENT OF THE ISSUER, OR WITHIN 3 DAYS AFTER THE AVAILABILITY OF THAT
PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS LATER (WHEN SALES
ARE MADE TO 5 OR MORE PERSONS IN FLORIDA).
Requests and inquiries regarding this Agreement should be directed to:
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T. Xxxxx Xxxxxxx, Xx.
Chief Financial Officer
Florida Banks, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TERMS OF AGREEMENT
In consideration of the mutual representations and warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
SUBSCRIPTION AND ISSUANCE OF SERIES C PREFERRED STOCK
1.1 SUBSCRIPTION AND ISSUANCE OF PREFERRED STOCK. Subject to the terms and
conditions of this Agreement, the Issuer will issue and sell to the Investor and
the Investor subscribes for and will purchase from the Issuer the number of
shares of Preferred Stock set forth on the signature page hereof (the "Shares")
for the aggregate purchase price set forth on the signature page hereof, which
shall be equal to the product of the number of Shares subscribed for by the
Investor times the per share purchase price specified in the above Recitals to
this Agreement (the "Purchase Price").
1.2 LEGEND. Any certificate or certificates representing the Shares shall
bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE WITH
RESPECT THERETO OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH ANY APPLICABLE RULES OF
THE SECURITIES AND EXCHANGE COMMISSION.
ARTICLE II
CLOSING
2.1 CLOSING. The closing of the transactions contemplated herein (the
"Closing") shall take place on a date designated by the Issuer, which date shall
be on or before December 31, 2002 (unless such date is extended by the Issuer,
in its sole and absolute discretion). The Closing shall take place at the
offices of Akerman Senterfitt, Xxx Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx,
Xxxxxxx 00000. At the Closing,
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unless the Investor and the Issuer otherwise agree, (i) the Issuer shall issue
to the Investor the Shares, and deliver to the Investor certificates for the
Shares duly registered in the name of the Investor; and (ii) all other
agreements and other documents referred to in this Agreement which are required
for the Closing shall be executed and delivered.
2.2 TERMINATION. This Agreement may be terminated at any time prior to the
Closing:
(a) by mutual written consent of the Issuer and the Investor;
(b) by the Investor, upon a breach of any material representation
and warranty, covenant or agreement on the part of the Issuer set forth in this
Agreement, or if any material representation and warranty of the Issuer shall
have become untrue in any material respect, in either case such that the
conditions in Section 8.1 would be incapable of being satisfied by the date of
the Closing; or
(c) by the Issuer, upon a breach of any material representation and
warranty, covenant or agreement on the part of the Investor set forth in this
Agreement, or if any material representation and warranty of the Investor shall
have become untrue in any material respect, in either case such that the
conditions in Section 8.2 would be incapable of being satisfied by the date of
the Closing.
2.3 EFFECT OF TERMINATION. In the event of termination of this Agreement
pursuant to Section 2.2, this Agreement shall forthwith become void, there shall
be no liability on the part of the Issuer or the Investor to each other and all
rights and obligations of any party hereto shall cease; provided, however, that
nothing herein shall relieve any party from liability for the willful breach of
any of its representations and warranties, covenants or agreements set forth in
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
As a material inducement to the Investor entering into this Agreement and
subscribing for the Shares, the Issuer represents and warrants to the Investor
as follows:
3.1 CORPORATE STATUS. The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
or formation. The Issuer is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect.
3.2 CORPORATE POWER AND AUTHORITY. The Issuer has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and consummate the transactions contemplated hereby. The Issuer has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
3.3 ENFORCEABILITY. This Agreement has been duly executed and delivered by
the Issuer and constitutes a legal, valid and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
general equitable principles, regardless of whether such enforceability is
considered in a proceeding at law or in equity.
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3.4 NO VIOLATION. The execution and delivery by the Issuer of this
Agreement, the consummation of the transactions contemplated hereby, and the
compliance by the Issuer with the terms and provisions hereof (including,
without limitation, the Issuer's issuance to the Investor of the Shares as
contemplated by and in accordance with this Agreement), will not result in a
default under (or give any other party the right, with the giving of notice or
the passage of time (or both), to declare a default or accelerate any obligation
under), or violate the Articles of Incorporation or Bylaws of the Issuer or any
material Contract to which the Issuer is a party (except to the extent such a
default or violation would not have a Material Adverse Effect on the Issuer), or
any Requirements of Law applicable to the Issuer, or result in the creation or
imposition of any material Lien upon any of the capital stock, properties or
assets of the Issuer or any of its Subsidiaries (except where such Lien would
not have a Material Adverse Effect on the Issuer). No consents, filings,
authorizations or other actions of any Governmental Authority are required for
the Issuer's execution, delivery and performance of this Agreement. No consent,
approval, waiver or other action by any Person under any Contract to which the
Issuer is a party or by which the Issuer or any of its properties or assets are
bound is required or necessary for the execution, delivery or performance by the
Issuer of this Agreement and the consummation of the transactions contemplated
hereby, except where the failure to obtain such consents would not have a
Material Adverse Effect on the Issuer.
3.5 VALID ISSUANCE. Upon payment of the Purchase Price by the Investor and
delivery to the Investor of the certificates for the Shares, such Shares will be
validly issued, fully paid and non-assessable and no preemptive rights will
exist with respect to any of the Shares or the issuance and sale thereof.
3.6 SEC FILINGS, OTHER FILINGS AND NASDAQ NATIONAL MARKET COMPLIANCE.
Since December 31, 1999, the Issuer has made all filings required to be made by
it under the Securities Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and any rules and regulations promulgated thereunder (the
"SEC Filings"), and pursuant to any other Requirements of Law (the "Other
Filings"). The SEC Filings and the Other Filings, when filed, complied in all
material respects with all applicable requirements of the Securities Act, the
Exchange Act and other Requirements of Law. None of the SEC Filings or the Other
Filings, at the time of filing, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading in light of the
circumstances in which they were made. Each balance sheet included in the SEC
Filings (including any related notes and schedules) fairly presents in all
material respects the consolidated financial position of the Issuer and its
Subsidiaries as of its date, and each of the other financial statements included
in the SEC Filings (including any related notes and schedules) fairly presents
in all material respects the consolidated results of operations or other
information therein of the Issuer and its Subsidiaries for the periods or as of
the dates therein set forth in accordance with GAAP consistently applied during
the periods involved (except that the interim reports are subject to
adjustments, which might be required as a result of a year end audit, and except
as otherwise stated therein).
3.7 NO COMMISSIONS. The Issuer has not incurred any other obligation for
any finder's or broker's or agent's fees or commissions in connection with the
transactions contemplated hereby.
3.8 No Material Adverse Change. Since September 30, 2002, there has been
no change or development or combination of changes or developments with respect
to the Issuer which, individually or in the aggregate, has had a Material
Adverse Effect on the Issuer, and Issuer knows of no such changes or
developments which it reasonably believes may occur.
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3.9 USE OF PROCEEDS. The proceeds of the Private Placement, net of
expenses, will be used by the Issuer for general corporate and working capital
purposes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
As a material inducement to the Issuer entering into this Agreement and
issuing the Shares, the Investor represents and warrants to the Issuer as
follows:
4.1 POWER AND AUTHORITY. The Investor is an entity duly organized, validly
existing and in good standing under the laws of the state of South Carolina. The
Investor has the corporate power and authority under applicable law to execute
and deliver this Agreement and consummate the transactions contemplated hereby,
and has all necessary authority to execute, deliver and perform its obligations
under this Agreement and consummate the transactions contemplated hereby. The
Investor has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
4.2 NO VIOLATION. The execution and delivery by the Investor of this
Agreement, the consummation of the transactions contemplated hereby, and the
compliance by the Investor with the terms and provisions hereof, will not result
in a default under (or give any other party the right, with the giving of notice
or the passage of time (or both), to declare a default or accelerate any
obligation under) or violate any charter or similar documents of the Investor,
if other than a natural person, or any Contract to which the Investor is a party
or by which it or its properties or assets are bound, or violate any
Requirements of Law applicable to the Investor, other than such violations or
defaults which do not and will not have a Material Adverse Effect on the
Investor.
4.3 CONSENTS AND APPROVALS. No consents, filings, authorizations or
actions of any Governmental Authority are required for the Investor's execution,
delivery and performance of this Agreement. No consent, approval, waiver or
other actions by any Person under any Contract to which the Investor is a party
or by which the Investor or any of its properties or assets are bound is
required or necessary for the execution, delivery and performance by the
Investor of this Agreement and the consummation of the transactions contemplated
hereby.
4.4 ENFORCEABILITY. This Agreement has been duly executed and delivered by
the Investor and constitutes a legal, valid and binding obligation of the
Investor, enforceable against the Investor in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor's rights generally and general equitable principles, regardless of
whether enforceability is considered in a proceeding at law or in equity.
4.5 INVESTMENT INTENT. The Investor is acquiring the Shares hereunder for
his, her or its own account and with no intention of distributing or selling
such Shares and further agrees not to transfer such Shares in violation of the
Securities Act or any applicable state securities law, and no Person other than
the Investor has any beneficial interest in the Shares. The Investor agrees that
he, she or it will not sell or otherwise dispose of any of the Shares unless
such sale or other disposition has been registered under the Securities Act or,
in the opinion of counsel acceptable to the Issuer, is exempt from registration
under the Securities Act and has been registered or qualified or, in the opinion
of such counsel acceptable to the Issuer,
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is exempt from registration or qualification under applicable state securities
laws. The Investor understands that the offer and sale by the Issuer of the
Shares being acquired by the Investor hereunder has not been registered under
the Securities Act by reason of their contemplated issuance in transactions
exempt from the registration and prospectus delivery requirements of the
Securities Act pursuant to Section 4(2) thereof, and that the reliance of the
Issuer on such exemption from registration is predicated on these
representations and warranties of the Investor. The Investor acknowledges that,
pursuant to Section 1.2 of this Agreement, a restrictive legend consistent with
the foregoing has been or will be placed on the certificates for the Shares.
4.6 ACCREDITED INVESTOR. The Investor is an "accredited investor," as such
term is defined in Rule 501(a) of Regulation D under the Securities Act (a copy
of which is attached hereto as EXHIBIT B), and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment to be made by it hereunder.
4.7 ADEQUATE INFORMATION. The Investor has received from the Issuer, and
has reviewed, all such information which the Investor considers necessary or
appropriate to evaluate the risks and merits of an investment in the Shares,
including without limitation, the documents and the additional risk factors
included on EXHIBIT C. The Investor acknowledges that each of the SEC Filings,
including the sections under the heading "BUSINESS - CERTAIN EVENTS THAT MAY
AFFECT FUTURE RESULTS" in the Issuer's Annual Report on Form 10-K for the fiscal
year ended December 31, 2001, are specifically incorporated herein by reference
and form an integral part of this Agreement. The Investor also acknowledges that
the additional risk factors set forth on EXHIBIT C are specifically incorporated
herein by reference and form an integral part of this Agreement.
4.8 OPPORTUNITY TO QUESTION. The Investor has had the opportunity to
question, and has questioned, to the extent deemed necessary or appropriate,
representatives of the Issuer so as to receive answers and verify information
obtained in the Investor's examination of the Issuer, including the information
that the Investor has received and reviewed as referenced in Section 4.7 hereof,
in relation to his, her or its investment in the Shares.
4.9 NO OTHER REPRESENTATIONS. No oral or written representations have been
made to the Investor in connection with the Investor's acquisition of the
Shares, which were in any way inconsistent with the information reviewed by the
Investor. The Investor acknowledges that no representations or warranties of any
type or description have been made to him, her or it by any Person with regard
to the Issuer, any of its Subsidiaries, any of their respective businesses,
properties or prospects or the investment contemplated herein, other than the
representations and warranties set forth in Article III hereof. Notwithstanding
the foregoing, no investigation, opportunity to question or similar action of
the Investor shall affect the representations, warranties, covenants or
agreements of the Issuer set forth herein.
4.10 KNOWLEDGE AND EXPERIENCE. The Investor has such knowledge and
experience in financial, tax and business matters, including substantial
experience in evaluating and investing in common stock and other securities
(including the common stock and other securities of speculative companies), so
as to enable the Investor to utilize the information referred to in Section 4.7
hereof and any other information made available by the Issuer to the Investor in
order to evaluate the merits and risks of an investment in the Shares and to
make an informed investment decision with respect thereto.
4.11 INDEPENDENT DECISION. The Investor is not relying on the Issuer or on
any legal or other opinion in the materials reviewed by the Investor with
respect to the financial or tax considerations of the Investor relating to its
investment in the Shares. The Investor has relied solely on the representations
and
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warranties, covenants and agreements of the Issuer in this Agreement (including
the Exhibits hereto) and on his, her or its examination and independent
investigation in making his, her or its decision to acquire the Shares.
4.12 COMMISSIONS. The Investor has not incurred any obligation for any
finder's or broker's or agent's fees or commissions in connection with the
transactions contemplated hereby.
4.13 RESCISSION RIGHTS. The Investor has been advised and hereby
acknowledges that, in the event sales of Shares are made to five or more Persons
in the State of Florida, the Investor is entitled to void the sale under this
Agreement within three days after the first tender of consideration for Shares
is made by the Investor to the Issuer, or an agent of the Issuer, or within
three days after the availability of that privilege is communicated to the
Investor, whichever date occurs later.
ARTICLE V
COVENANTS
5.1 PUBLIC ANNOUNCEMENTS. Unless required by law (as evidenced by a
written opinion of counsel), the Investor agrees not to make any public
announcement or issue any press release or otherwise publicly disseminate any
information about the subject matter of this Agreement. The Investor shall
provide the Issuer with an opportunity for reasonable review and comment with
respect to any such public announcement. The Issuer shall have the right to make
such public announcements and shall control the timing, form and content of all
press releases or other public communications of any sort relating to the
subject matter of this Agreement, and the method of their release, or
publication thereof, subject to the reasonable right of the Investor to review
and comment.
5.2 FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of the terms of this Agreement and the transactions contemplated hereby. Each of
the Investor and the Issuer shall make on a prompt and timely basis all
governmental or regulatory notifications and filings required to be made by it
with or to any Governmental Authority in connection with the consummation of the
transactions contemplated hereby. The Issuer and the Investor each agree to
cooperate with the other in the preparation and filing of all forms,
notifications, reports and information, if any, required or reasonably deemed
advisable pursuant to any Requirements of Law or the rules of the Nasdaq
National Market in connection with the transactions contemplated by this
Agreement, and to use their respective best efforts to agree jointly on a method
to overcome any objections by any Governmental Authority to any such
transactions. Except as may be specifically required hereunder, neither of the
parties hereto or their respective Affiliates shall be required to agree to take
any action that in the reasonable opinion of such party would result in or
produce a Material Adverse Effect on such party.
5.3 NOTIFICATION OF CERTAIN MATTERS. Each party hereto shall give prompt
notice to the other party of the occurrence, or non-occurrence, of any event
which would be likely to cause any representation and warranty herein to be
untrue or inaccurate, or any covenant, condition or agreement herein not to be
complied with or satisfied.
5.4 CONFIDENTIAL INFORMATION. The Investor agrees that no portion of the
Confidential Information (as defined below) shall be disclosed to third parties,
except as may be required by law, without
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the prior express consent of the Issuer, provided that the Investor may share
such information with such of its advisors as may need to know such information
to assist the Investor in its evaluation thereof on the condition that such
parties agree to be bound by the terms hereof. All Confidential Information
received by the Investor shall be promptly returned or destroyed, as directed by
the Issuer. "Confidential Information" means the fact that the Issuer is
offering the Shares and all oral or written data, reports, records or materials
and any and all other confidential or disclosure information or materials
obtained from the Issuer or its professional advisors. Confidential Information
excludes information that is publicly available or already known to the Investor
through a source not bound by any confidentiality obligation.
ARTICLE VI
SERIES D PREFERRED STOCK
As soon as reasonably practical after Closing, the parties agree that they will
cooperate in filing an application with the Board of Governors of the Federal
Reserve System (the "Federal Reserve") seeking approval for Investor to own
50,000 shares of a new Series D Preferred Stock (in substantially the form as
attached hereto as Exhibit D or on such other terms as are acceptable to
Investor, Issuer and the Federal Reserve). In the event that such application is
approved, Issuer would take such action as may be necessary to authorize such
Series D Preferred Stock and Investor would surrender its Series C Preferred
Stock to the Issuer upon issuance of such Series D Preferred Stock.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION GENERALLY. The Issuer, on the one hand, and the
Investor, on the other hand (each an "Indemnifying Party"), shall indemnify the
other from and against any and all losses, damages, liabilities, claims,
charges, actions, proceedings, demands, judgments, settlement costs and expenses
of any nature whatsoever (including, without limitation, reasonable attorneys'
fees and expenses) or deficiencies resulting from any breach of a representation
and warranty, covenant or agreement by the Indemnifying Party and all claims,
charges, actions or proceedings incident to or arising out of the foregoing.
7.2 RESERVED
7.3 INDEMNIFICATION PROCEDURES. Each Person entitled to indemnification
under this Section (an "Indemnified Party") shall give notice as promptly as
reasonably practicable to each Indemnifying Party of any action commenced
against or by him, her or it in respect of which indemnity may be sought
hereunder, but failure to so notify an Indemnifying Party shall not relieve such
Indemnifying Party from any liability that he, she or it may have otherwise than
on account of this indemnity agreement so long as such failure shall not have
materially prejudiced the position of the Indemnifying Party. Upon such
notification, the Indemnifying Party shall assume the defense of such action if
it is a claim brought by a third party, if and after such assumption the
Indemnifying Party shall not be entitled to reimbursement of any expenses
incurred by him, her or it in connection with such action except as described
below. In any such action, any Indemnified Party shall have the right to retain
him, her, or its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Party unless (i) the Indemnifying Party and
the Indemnified Party shall have mutually agreed to the contrary, or (ii) the
named parties in any such action (including any impleaded
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parties) include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing or conflicting interests between them. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which shall not be unreasonably withheld
or delayed by such Indemnifying Party), but if settled with such consent or if
there be final judgment for the plaintiff, the Indemnifying Party shall
indemnify the Indemnified Party from and against any loss, damage or liability
by reason of such settlement or judgment.
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 CONDITIONS TO THE OBLIGATIONS OF THE INVESTOR. The obligations of the
Investor to proceed with the Closing is subject to the following conditions, any
and all of which may be waived, in whole or in part, to the extent permitted by
applicable law:
(a) Representations and Warranties. Each of the representations and
warranties of the Issuer contained in this Agreement shall be true and correct
in all material respects as of the Closing as though made on and as of the
Closing, except (i) for changes specifically permitted by this Agreement, and
(ii) that those representations and warranties which address matters only as of
a particular date shall remain true and correct as of such date, except in any
case for such failures to be true and correct which would not, individually or
in the aggregate, have a Material Adverse Effect on the Issuer.
(b) Agreement and Covenants. The Issuer shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Closing.
(c) No Order. No governmental authority or other agency or
commission or federal or state court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction, or other order (whether temporary,
preliminary or permanent) which is in effect and which materially restricts,
prevents or prohibits consummation of the Closing or any transaction
contemplated by this Agreement.
8.2 CONDITIONS TO THE OBLIGATIONS OF THE ISSUER. The obligations of the
Issuer to proceed with the Closing is subject to the following conditions any
and all of which may be waived, in whole or in part, to the extent permitted by
applicable law:
(a) Representations and Warranties. Each of the representations and
warranties of the Investor contained in this Agreement shall be true and correct
as of the Closing as though made on and as of the Closing, except (i) for
changes specifically permitted by this Agreement, and (ii) that those
representations and warranties which address matters only as of a particular
date shall remain true and correct as of such date, except in any case for such
failures to be true and correct which would not, individually or in the
aggregate, have a Material Adverse Effect on the Investor. Unless the Issuer
receives written notification to the contrary at the Closing, the Issuer shall
be entitled to assume that the preceding is accurate in all respects at the
Closing.
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(b) Agreement and Covenants. The Investor shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Closing. Unless the Issuer receives written notification to the contrary at the
Closing, the Issuer shall be entitled to assume that the preceding is accurate
in all respects at the Closing.
(c) No Order. No governmental authority or other agency or
commission or federal or state court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction, or other order (whether temporary,
preliminary or permanent) which is in effect and which materially restricts,
prevents or prohibits consummation of the Closing or any transaction
contemplated by this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 DEFINED TERMS. As used herein the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
"Articles of Incorporation" means the Issuer's Second Amended and
Restated Articles of Incorporation, as the same may be supplemented, amended or
restated from time to time.
"Closing" has the meaning in Article II of this Agreement.
"Common Stock" has the meaning in the Recitals to this Agreement.
"Contract" means any indenture, lease, sublease, loan agreement,
mortgage, note, restriction, commitment, obligation or other contract, agreement
or instrument.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any entity or official exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Holder" has the meaning specified in Section 6.3 of this Agreement.
"Issuer" means Florida Banks, Inc., a Florida corporation.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code or
comparable
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law or any jurisdiction in connection with such mortgage, pledge, security
interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change in or effect on
the financial condition, properties, assets, liabilities, rights, obligations,
operations or business, which change or effect, individually or in the
aggregate, is materially adverse to the Issuer and its Subsidiaries taken as a
whole.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, estate, trust, unincorporated association, joint
venture, Governmental Authority or other entity, of whatever nature.
"Preferred Stock" has the meaning specified in the Recitals to this
Agreement.
"Purchase Price" has the meaning specified in Section 1.1 of this
Agreement.
"Requirements of Law" means as to any Person, the articles of
incorporation, by-laws or other organizational or governing documents of such
person, and any domestic or foreign and federal, state or local law, rule,
regulation, statute or ordinance or determination of any arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its properties or to which such Person or any of its property
is subject.
"SEC" means the Securities and Exchange Commission.
"SEC Filings" has the meaning specified in Section 3.6 of this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning specified in Section 1.1 of this Agreement.
"Subsidiary" means as to any Person, a corporation or limited
partnership of which more than 50% of the outstanding capital stock or
partnership interests having full voting power is at the time directly or
indirectly owned or controlled by such Person.
9.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
(c) All accounting terms shall have a meaning determined in
accordance with GAAP.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
11
(e) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement shall refer to this Agreement as a
whole (including any Exhibits hereto) and not to any particular provision of
this Agreement.
9.3 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
subsequently designate in writing to the other party):
(a) if to the Issuer to:
Florida Banks, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: T. Xxxxx Xxxxxxx, Xx.
Telecopy: (000) 000-0000
with a copy to:
Akerman Senterfitt
Xxx Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to the Investor to the address set forth next to its name on
the signature page hereto.
9.4 REMEDIES.
(a) Each of the Investor and the Issuer acknowledge that the other
party would not have an adequate remedy at law for money damages in the event
that any of the covenants or agreements of such party in this Agreement was not
performed in accordance with its terms, and it is therefore agreed that each of
the Investor and the Issuer in addition to and without limiting any other remedy
or right such party may have, shall have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach and enforcing specifically the terms and provisions hereof, and each of
the Investor and the Issuer hereby waive any and all defenses such party may
have on the ground of lack of jurisdiction or competence of the court to grant
such an injunction or other equitable relief.
(b) All rights, powers and remedies under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
12
9.5 ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) and other documents delivered at the Closing pursuant hereto, contain
the entire understanding of the parties in respect of its subject matter and
supersedes all prior or contemporaneous agreements and understandings between or
among the parties with respect to such subject matter. The Exhibits constitute a
part hereof as though set forth in full above.
9.6 EXPENSES; TAXES. Except as otherwise provided in this Agreement, the
parties shall pay their own fees and expenses, including their own counsel fees,
incurred in connection with this Agreement or any transaction contemplated
hereby. Any sales tax, stamp duty, deed transfer or other tax (except taxes
based on the income of the Investor) arising out of the issuance of the Shares
by the Issuer to the Investor and consummation of the transactions contemplated
by this Agreement shall be paid by the Issuer.
9.7 AMENDMENT; WAIVER. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
both parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
9.8 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and legal assigns. The rights and obligations of this
Agreement may not be assigned by any party without the prior written consent of
the other party.
9.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
9.10 HEADINGS. The headings contained in this Agreement are for
convenience of reference only and are not to be given any legal effect and shall
not affect the meaning or interpretation of this Agreement.
9.11 GOVERNING LAW; INTERPRETATION. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida without reference to its principals of conflicts of law.
9.12 SEVERABILITY. The parties stipulate that the terms and provisions of
this Agreement are fair and reasonable as of the date of this Agreement.
However, any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated. If, moreover, any of those provisions shall for any reason be
determined by a court of competent jurisdiction to be unenforceable because
excessively broad or vague as to duration, activity or subject, it shall be
construed by limiting, reducing or defining it, so as to be enforceable.
13
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14
IN WITNESS WHEREOF, the parties hereto have caused this Subscription
Agreement to be duly executed and delivered as of the date set forth below.
NAME OF INVESTOR: ADDRESS FOR NOTICES:
The South Financial Group, Inc. 000 X. Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Tax Identification #: Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Telecopy: 000-000-0000
SIGNATURE:
By: /s/ Xxxxxxx Hummers III
------------------------------------
Printed Name: Xxxxxxx X. Hummers III
------------------------
Title: Executive Vice President
Date: December 31, 2002
Exact Name to appear on Preferred Stock Certificate: The South Financial Group,
Inc.
Number of Shares Subscribed For: 50,000 (10,000 Share minimum)
Aggregate Price (number of Shares purchased multiplied by $100.00) $5,000,000
ACCEPTED: FLORIDA BANKS, INC.
By: /s/ T. Xxxxx Xxxxxxx, Xx. Dated: December 31, 2002
--------------------------------------
Name: T. Xxxxx Xxxxxxx, Xx.
Title: Chief Financial Officer
15
EXHIBIT A
ARTICLES OF AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
FLORIDA BANKS, INC.
The name of the Corporation is FLORIDA BANKS, INC.
The undersigned certifies, on behalf of the Corporation, that pursuant to
the authority contained in its Second Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), and in accordance with the
provisions of Section 607.0602(4) of the Florida Business Corporation Act (the
"Act"), the Board of Directors of the Corporation by unanimous written consent,
dated December 9, 2002, pursuant to Section 607.0821 of the Act, duly approved
and adopted the following resolution, which resolution is effective without
approval of the Corporation's shareholders pursuant to Section 607.0602(4) of
the Act and remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of the Articles of
Incorporation and Section 607.0602 of the Act, a series of preferred stock of
the Corporation be, and it hereby is, created, and the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, are as follows:
1. Designation. The designation of the series of preferred stock created
by this resolution shall be Series C Preferred Stock, $100.00 par value per
share (hereinafter referred to as the "Series C Preferred Stock"), and the
initial number of shares constituting such series shall be 50,000. Such number
may be increased or decreased (but not below the number of shares then
outstanding) from time to time by the Board of Directors of the Corporation and
upon the consent of the holders of a majority of the Series C Preferred Stock
("Majority Consent"). The Series C Preferred Stock shall rank prior to the
common stock of the Corporation, $.01 par value per share (the "Common Stock"),
with respect to the payment of dividends and the distribution of assets.
2. Dividend Rights.
(a) The holders of shares of Series C Preferred Stock shall be
entitled to receive on a per share basis
(1) when, as and if declared by the Board of Directors, out of
funds legally available therefor, cash dividends, at an annual rate of
5.0% per share (expressed as a percentage of the $100.00 per share
liquidation preference set forth in Section 3 hereof) payable in arrears
in quarterly installments to be mailed: (i) no later than forty-five days
after the end of the fourth fiscal quarter of each fiscal year of the
Corporation; and (ii) no later than fifteen (15) days after the end of the
first, second and third fiscal quarters of each fiscal year of the
Corporation (the "Regular Dividend") plus,
A-1
(2) if quarterly dividends on the common stock are ever
greater than the Quarterly Equivalent Dividend Amount, the amount of such
excess times the Notional Exchange Ratio, payable in the same manner on
which the Common Stock dividends are being paid.
The Quarterly Equivalent Dividend Amount shall be equal to 25% of
the Regular Dividend divided by the Notional Exchange Ratio. Dividends on
the Series C Preferred Stock will be non-cumulative. The rate at which
dividends are paid shall be adjusted for any combinations or divisions or
similar recapitalizations affecting the shares of Series C Preferred
Stock. So long as any shares of Series C Preferred Stock are outstanding,
(i) the amount of all dividends paid with respect to the shares of Series
C Preferred Stock pursuant to this subparagraph shall be paid pro rata to
the holders entitled thereto and (ii) holders of shares of Series C
Preferred Stock shall be entitled to receive the dividends provided for in
this subparagraph in preference to and in priority over any dividends upon
any Common Stock.
(b) The Corporation shall not (i) declare, pay or set apart for
payment any dividends or distributions on any stock ranking as to
dividends junior to the Series C Preferred Stock (other than dividends
paid in shares of such junior stock) or (ii) make any purchase or
redemption of, or any sinking fund payment for the purchase or redemption
of, any stock ranking as to dividends junior to the Series C Preferred
Stock (other than a purchase or redemption made by issue or delivery of
such junior stock) unless all dividends payable on all outstanding shares
of Series C Preferred Stock for all past dividend periods shall have been
paid in full or declared and a sufficient sum set apart for payment
thereof.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of Series C Preferred Stock at that time shall be entitled to
receive out of the assets of the Corporation available for distribution to
shareholders an amount equal to $100.00 per share plus (1) an amount equal
to accrued and unpaid dividends thereon through and including the date of
such distribution and (2) plus to the extent that distributions under this
provision on the Common Stock exceeds the Common Liquidation Equivalent
Amount, an amount equal to such excess times the Notional Exchange Ratio,
before any distribution shall be made to the holders of any class of stock
of the Corporation ranking junior to the Series C Preferred Stock as to
the distribution of assets. The Common Liquidation Equivalent Amount shall
be equal to $100.00 divided by the Notional Exchange Ratio, plus the
Regular Dividend.
(b) If the assets of the Corporation available for distribution to
shareholders upon any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, are
insufficient to pay in full the amounts payable with respect to the Series
C Preferred Stock, the holders of Series C Preferred Stock at that time
shall share ratably in any distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which they are
entitled.
(c) The merger or consolidation of the Corporation into or with any
other corporation, the merger or consolidation of any other corporation
into or with the Corporation or the sale of the
A-2
assets of the Corporation substantially as an entirety shall not be deemed
a liquidation, dissolution or winding up of the affairs of the Corporation
within the meaning of this paragraph.
4. Conversion Rights. The shares of Series C Preferred Stock shall not, by
its terms, be convertible into any other securities of the Corporation.
5. Voting Rights. Holders of Series C Preferred Stock shall have no voting
rights except as required by law or as expressly provided herein. The following
actions may not be taken except upon upon Majority Consent:
(i) the amendment of the terms of the Series C Preferred Stock; or
(ii) the authorization any class of stock ranking prior or equal to
the Series C Preferred Stock in respect of dividends or distribution of assets
on liquidation.
6. Reacquired Shares. Shares of Series C Preferred Stock redeemed, or
otherwise purchased or acquired by the Corporation shall be restored to the
status of authorized but unissued shares of the Corporation's preferred stock
without designation as to series.
7. No Sinking Fund. Shares of Series C Preferred Stock are not subject to
the operation of a sinking fund.
8. Mandatory Redemption.
(a) The Series C Preferred Stock shall be mandatorily redeemable by the
Corporation upon a Change of Control and at the Redemption Price.
(b) For purposes of this Section 8, the following terms shall have the
indicated definitions:
"Change of Control" shall mean a merger or consolidation of the
Corporation with any other corporation or the sale or disposition of the
Corporation of all or substantially all of the Corporation's assets to another
corporation other than (A) a merger or consolidation or sale that would result
in the voting securities of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent thereof),
in combination with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of any Corporation, at least 51% of
the combined voting power of the voting securities of the Corporation or such
surviving entity or any parent thereof outstanding immediately after such merger
or consolidation, or (B) a merger or consolidation or sale effected to implement
a recapitalization of the Corporation (or similar transaction) in which no
Person is or becomes the beneficial owner (as defined in the federal securities
laws), directly or indirectly, of securities of the Corporation (not including
in the securities beneficially owned by such Person any securities acquired
directly from the Corporation) representing 25% or more of the combined voting
power of the Corporation's then outstanding voting securities; or (C) a plan of
complete liquidation of the Corporation.
"Redemption Price" shall mean, at the election of the holders of the
Series C Preferred Stock an amount per share equal to (1) the liquidation
preference payable under Section 3, payable in cash or (2) ten times the
consideration per common share being received in the Change of Control
transaction by holders of the Corporation's Common Stock.
A-3
9. Notional Exchange Ratio. The Notional Exchange Ratio shall be 10 (10
shares of Common Stock for one share of Series C Preferred Stock), which ratio
shall be subject to equitable adjustment for stock splits, stock dividends,
recapitalizations, reclassifications and similar matters in the same manner as
if the Series C Preferred Stock were convertible into the Corporation's Common
Stock.
The foregoing Amendment to the Corporation's Second Amended and Restated
Articles of Incorporation is filed pursuant to Section 607.1006 of the Act and
was duly adopted by the unanimous written consent of the Corporation's Board of
Directors without a meeting pursuant to Section 607.0821 of the Act and is
effective without approval of the Corporation's shareholders pursuant to
Section 607.0602(4) of the Act.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment as of the ____ day of December, 2002.
------------------------------------------
A-4
EXHIBIT B
As defined in Rule 501(a), an "accredited investor" means:
(a) A bank as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended (the "Securities Act"), or any savings and loan
association or other institution (as defined in Section 3(a)(5)(A)
of the Securities Act) whether acting in its individual or fiduciary
capacity; any broker or dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934; any insurance company as
defined in Section 2(13) of the Securities Act; any investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that
Act; any Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the
benefit of its employees, if such plan has total assets in excess of
$5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of
such Act, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the
employee benefit plan has total assets in excess of $5,000,000 or,
if a self-directed plan, with investment decisions made solely by
persons that are accredited investors;
(b) Any private business development company as defined in Section
292(a)(22) of the Investment Advisers Act of 1940;
(c) Any organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"), corporation,
Massachusetts Trust or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered,
with total assets in excess of $5,000,000;
(d) Any director, executive officer or general partner of the issuer of
the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(e) Any natural person whose individual net worth, or joint net worth
with that person's spouse, at the time of his or her purchase
exceeds $1,000,000;
(f) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with
that person's spouse in excess of $300,000 in each of those years
and has a reasonable expectation of reaching the same income level
in the current year (spouses purchasing securities in this Offering
jointly each must individually satisfy the $200,000 annual income
test);
(g) Any trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities offered, whose
purchase is directed by a person having such knowledge and
experience in financial and business matters that he is capable of
evaluating the merits and risks of the prospective investment; or
B-1
(h) Any entity in which all of the equity owners are accredited
investors.
In addition, a participant in a defined contribution or profit sharing
plan qualified under Section 401 of the Code may be deemed the purchaser of
securities for the purpose of determining whether the plan is an "accredited
investor" if the following conditions are satisfied: (x) the plan trust must
provide for segregated accounts for each plan participant, (y) the plan document
must provide the participant with the power to direct the trustee to make each
particular investment to the extent of the participant's voluntary contributions
plus that portion of employer contributions that have vested to the
participant's benefit and (z) the investment in the securities must have been
made pursuant to an exercise by the participant of the power to direct the
investment of his or her account in the plan trust.
The Issuer has not adopted any minimum net worth or income criteria beyond
those required of "accredited investors" but reserves the right to make an
individual evaluation of the suitability of each potential Investor. The
Investor's representations will be reviewed to determine the suitability as a
purchaser. Satisfaction of the Issuer's suitability standards by a prospective
Investor does not represent a determination by the Issuer that the Preferred
Stock is a suitable investment for such person. The Investor must consult his or
her own professional advisor in order to ascertain the suitability of the
investment. The Issuer may make or cause to be made such further inquiry and
obtain such additional information as it deems appropriate with regard to the
suitability of prospective Investors.
CERTAIN STATES MAY IMPOSE ADDITIONAL SUITABILITY QUALIFICATIONS FOR
INVESTORS WHICH MAY HAVE THE EFFECT OF REQUIRING POTENTIAL INVESTORS TO HAVE A
NET WORTH OR ANNUAL INCOME IN EXCESS OF THE MINIMUM REQUIREMENTS SET FORTH
HEREIN. IF SUCH OFFERS AND SALES ARE MADE IN SUCH STATES, INVESTORS FROM SUCH
STATES WILL BE REQUIRED TO MEET SUCH QUALIFICATIONS IN ORDER TO PARTICIPATE IN
THIS OFFERING.
B-2
EXHIBIT C
SEC FILINGS
THE INVESTOR IS URGED TO REVIEW THE FOLLOWING DOCUMENTS WHICH ARE INCORPORATED
BY REFERENCE HEREIN AS IF RESTATED HEREIN:
1. Issuer's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001.
2. Issuer's 2001 Annual Report to Shareholders.
3. Definitive Proxy Statement on Schedule 14A relating to the Issuer's
2002 Annual Meeting of Stockholders.
4. Issuer's Quarterly Reports on Form 10-Q for the three-month periods
ended March 31, 2002, June 30, 2002 and September 30, 2002
ADDITIONAL RISKS RELATED TO THE PRIVATE PLACEMENT
RESTRICTIONS ON TRANSFERABILITY
The Private Placement has not been, and will not be, registered pursuant to the
Securities Act, in reliance on the provisions of an exemption from registration
under the Securities Act. The securities offered hereby are also being sold
pursuant to exemptions from registration in all states of the United States
where they are being offered and sold. The securities offered hereby will be
illiquid. No market is expected to develop.
BEST EFFORTS NATURE OF OFFERING
The Private Placement is being made on a "best efforts" basis, with no minimum
condition. Consequently, no minimum number of shares of Series C Preferred Stock
need be subscribed for in order for the Issuer to complete the sale of any of
the shares of Series C Preferred Stock offered hereby and utilize the proceeds
therefrom. If fewer than all of the shares of Series C Preferred Stock offered
hereby are sold, proceeds available for planned use by the Issuer will be
limited.
NO SEPARATE REPRESENTATION OF INVESTORS
The terms of this Private Placement were determined by the Issuer with no
separate counsel or advisor for prospective investors. Each prospective investor
is advised to seek independent advice and counsel before deciding whether to
purchase Shares in the Private Placement.
BROAD DISCRETION AS TO THE USE OF PROCEEDS
Management of the Issuer will have broad discretion in how we use the net
proceeds of the Private Placement. The investors will be relying on the judgment
of the Issuer's management regarding the application of the proceeds of the
Private Placement.
DILUTION RESULTING FROM THE ISSUANCE OF COMMON STOCK IN THE FUTURE
The Issuer has the power to issue Common Stock without shareholder approval, up
to the number of authorized shares set forth in its Second Amended and Restated
Articles of Incorporation. The issuance of any additional shares of Common Stock
by the Issuer in the future may result in a reduction of the book
3
value or market price, if any, of the then-outstanding Common Stock. Issuance of
additional shares of Common Stock will reduce the proportionate ownership and
voting power of the existing shareholders.
FUTURE CAPITAL NEEDS
The Board of Directors of the Issuer may determine from time to time a need to
obtain additional capital through the issuance of additional shares of Common
Stock or other securities. There can be no assurance that such shares can be
issued at prices or on terms better than or equal to the terms of the Private
Placement. In addition, such issuance would dilute the ownership interests in
the Issuer of the investors in the Private Placement.
COMMON STOCK IS NOT AN INSURED BANK DEPOSIT
The shares of Series C Preferred Stock offered in the Private Placement are not
deposits, savings accounts or other obligations of the Issuer, its subsidiaries
or any other depository institution, are not guaranteed by the Issuer or any
other entity, will not be insured by the FDIC or any other governmental agency
and may not be used as collateral to secure a loan from the Issuer, its
subsidiaries or any of their affiliates.
4
EXHIBIT D
ARTICLES OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF FLORIDA BANKS, INC.
ESTABLISHING SERIES D PREFERRED STOCK
The name of the Corporation is FLORIDA BANKS, INC.
The undersigned certifies, on behalf of the Corporation, that pursuant to
the authority contained in its Second Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), and in accordance with the
provisions of Section 607.0602(4) of the Florida Business Corporation Act (the
"Act"), the Board of Directors of the Corporation by unanimous written consent,
dated December 9, 2002, pursuant to Section 607.0821 of the Act, duly approved
and adopted the following resolution, which resolution is effective without
approval of the Corporation's shareholders pursuant to Section 607.0602(4) of
the Act and remains in full force and effect on the date hereof:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of the Articles of
Incorporation and Section 607.0602 of the Act, a series of preferred stock of
the Corporation be, and it hereby is, created, and the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, are as follows:
1. Designation. The designation of the series of preferred stock created
by this resolution shall be Series D Preferred Stock, $100.00 par value per
share (hereinafter referred to as the "Series D Preferred Stock"), and the
initial number of shares constituting such series shall be 50,000. Such number
may be increased or decreased (but not below the number of shares then
outstanding) from time to time by the Board of Directors of the Corporation and
upon the consent of the holders of a majority of the Series D Preferred Stock
("Majority Consent"). The Series D Preferred Stock shall rank prior to the
common stock of the Corporation, $.01 par value per share (the "Common Stock"),
with respect to the payment of dividends and the distribution of assets.
2. Dividend Rights.
(a) The holders of shares of Series D Preferred Stock shall be
entitled to receive on a per share basis
(1) when, as and if declared by the Board of Directors, out of
funds legally available therefor, cash dividends, at an annual rate of
5.0% per share (expressed as a percentage of the $100.00 per share
liquidation preference set forth in Section 3 hereof) payable in arrears
in quarterly installments to be mailed: (i) no later than forty-five days
after the end of the fourth fiscal quarter of each fiscal year of the
Corporation; and (ii) no later than fifteen (15) days after the end of the
first, second and third fiscal quarters of each fiscal year of the
Corporation (the "Regular Dividend") plus,
(2) if quarterly dividends on the common stock are ever
greater than the Quarterly Equivalent Dividend Amount, the amount of such
excess times the Conversion Rate, payable in the same manner on which the
Common Stock dividends are being paid.
The Quarterly Equivalent Dividend Amount shall be equal to 25% of
the Regular Dividend divided by the Conversion Rate. Dividends on the
Series D Preferred Stock will be non-cumulative.
5
The rate at which dividends are paid shall be adjusted for any
combinations or divisions or similar recapitalizations affecting the
shares of Series D Preferred Stock. So long as any shares of Series D
Preferred Stock are outstanding, (i) the amount of all dividends paid with
respect to the shares of Series D Preferred Stock pursuant to this
subparagraph shall be paid pro rata to the holders entitled thereto and
(ii) holders of shares of Series D Preferred Stock shall be entitled to
receive the dividends provided for in this subparagraph in preference to
and in priority over any dividends upon any Common Stock.
(b) The Corporation shall not (i) declare, pay or set apart for
payment any dividends or distributions on any stock ranking as to
dividends junior to the Series D Preferred Stock (other than dividends
paid in shares of such junior stock) or (ii) make any purchase or
redemption of, or any sinking fund payment for the purchase or redemption
of, any stock ranking as to dividends junior to the Series D Preferred
Stock (other than a purchase or redemption made by issue or delivery of
such junior stock) unless all dividends payable on all outstanding shares
of Series D Preferred Stock for all past dividend periods shall have been
paid in full or declared and a sufficient sum set apart for payment
thereof.
3. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of Series D Preferred Stock at that time shall be entitled to
receive out of the assets of the Corporation available for distribution to
shareholders an amount equal to $100.00 per share plus (1) an amount equal
to accrued and unpaid dividends thereon through and including the date of
such distribution and (2) plus to the extent that distributions under this
provision on the Common Stock exceeds the Common Liquidation Equivalent
Amount, an amount equal to such excess times the Conversion Rate, before
any distribution shall be made to the holders of any class of stock of the
Corporation ranking junior to the Series D Preferred Stock as to the
distribution of assets. The Common Liquidation Equivalent Amount shall be
equal to $100.00 divided by the Conversion Rate, plus the Regular
Dividend.
(b) If the assets of the Corporation available for distribution to
shareholders upon any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, are
insufficient to pay in full the amounts payable with respect to the Series
D Preferred Stock, the holders of Series D Preferred Stock at that time
shall share ratably in any distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which they are
entitled.
(c) The merger or consolidation of the Corporation into or with any
other corporation, the merger or consolidation of any other corporation
into or with the Corporation or the sale of the assets of the Corporation
substantially as an entirety shall not be deemed a liquidation,
dissolution or winding up of the affairs of the Corporation within the
meaning of this paragraph.
4. Conversion Rights. The shares of Series D Preferred Stock shall be
convertible into shares of Common Stock on the following terms and conditions:
(a) The Series D Preferred Stock will automatically convert on a
ten-for-one (10:1) basis, or the then current adjusted basis as set forth
below (the "Conversion Rate"), into shares of authorized but unissued
Common Stock upon the occurrence of any of the following:
(i) the average market value per share of the Common Stock for
any thirty (30) consecutive trading day period is $10.00 per share or
greater; or
6
(ii) the Corporation consummates an underwritten public
offering of any shares of Common Stock at a price of $10.00 per share or
higher.
(b) Each share of Series D Preferred Stock may be converted, at the
Conversion Rate, into shares of authorized but previously unissued Common
Stock at any time, at the option of the holder upon the delivery of a
fully executed notice of conversion in the form attached hereto as Exhibit
A.
(c) Promptly upon the occurrence of any of the events set forth in
Sections 4(a) or 4(b) above and the surrender of the certificate or
certificates representing the share or shares of Series D Preferred Stock
to be converted, the Corporation shall cause to be issued and delivered to
said holder, registered in such name or names as such holder may direct, a
certificate or certificates for the number of shares of Common Stock
issuable upon the conversion of such share or shares. To the extent
permitted by law, such conversion shall be deemed to have been effected as
of the close of business on the date of conversion, at which time the
rights of the holder of such share or shares as such holder shall cease,
and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record
of the shares of Common Stock represented thereby.
(d) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series D Preferred Stock. The Corporation
shall pay cash for any fractional shares which the Corporation otherwise
would have been required to issue upon any conversion of such shares. The
amount of such cash shall be determined in accordance with the Conversion
Price in effect on the date of such conversion.
(e) The market value of the Common Stock shall be determined as
follows:
(i) If the Common Stock is listed on a national securities
exchange or admitted to unlisted trading privileges on such
exchange, or traded or listed for trading on the NASDAQ market
system or other nationally recognized market, the market value shall
be the last reported sale price of the Common Stock on such
exchange, system or market on any applicable date (which, in the
case of determining the market value of fractional shares issuable
upon conversion, shall be the last trading day prior to the date of
conversion). If no such sale is made on such day, the market value
shall be the average closing bid and asked prices for such day on
such exchange, system or market.
(ii) If the Common Stock is not so listed, traded or admitted
to unlisted trading privileges, the market value shall be the
average closing bid and asked prices reported by the National
Quotation Bureau, Inc. on any applicable date (which, in the case of
determining the market value of fractional shares issuable upon
conversion, shall be the last business day prior to the date of
conversion). If bid and asked prices are not so reported, the market
value shall be an amount determined by the Corporation's independent
certified public accountants or other nationally recognized
independent certified public accountants or professional appraisal
firm specified by the Corporation.
(f) The Conversion Rate in effect at any time shall be subject to
adjustment as follows:
(i) The Conversion Rate shall be adjusted if the Corporation
(aa) declares or makes a distribution or dividend on its Common
Stock in shares of its capital stock, (bb) subdivides its
outstanding shares of Common Stock into a greater number of shares,
(cc) combines its outstanding shares of Common Stock into a smaller
number of shares or (dd) issues by reclassification of its shares of
Common Stock (including any reclassification in
7
connection with a consolidation or merger in which the Corporation
is the continuing corporation) any shares of Common Stock. The
Conversion Rate in effect at the time of the record date for such
dividend or distribution, or the effective date of any subdivision,
combination or reclassification, shall be adjusted so that the
holder of any shares of Series D Preferred Stock after such time
shall be entitled to receive the number and kind of shares which it
would have owned or have been entitled to receive if such shares had
been converted immediately prior to such time. Similar adjustments
shall be made successively whenever any event listed above shall
occur.
(ii) In the event of any consolidation of the Corporation
with, or merger of the Corporation into, any other corporation
(other than a consolidation or merger in which the Corporation is
the continuing corporation), the holders of the Series D Preferred
Stock shall have the right thereafter to convert such shares into
the kind and amount of shares of stock or other securities of
property, including cash, or any combination thereof, receivable
upon such consolidation or merger by a holder of the number of
shares of Common Stock of the Corporation into which such shares
might have been converted immediately prior to such consolidation or
merger. The provisions of this subparagraph shall similarly apply to
successive consolidations and mergers.
(g) The Corporation shall at all times reserve and keep available
out of its authorized Common Stock, free from preemptive rights, such
shares of Common Stock as shall be issuable upon conversion of the Series
D Preferred Stock. All shares of Common Stock which shall be so issuable
shall, when issued, be duly and validly issued shares of the Corporation's
authorized Common Stock and shall be fully paid and nonassessable, free of
all liens and charges and not subject to preemptive rights.
5. Voting Rights. Holders of Series D Preferred Stock shall have no voting
rights except as required by law or as expressly provided herein. The following
actions may not be taken except upon upon Majority Consent:
(i) the amendment of the terms of the Series D Preferred Stock; or
(ii) the authorization any class of stock ranking prior or equal to
the Series D Preferred Stock in respect of dividends or distribution of assets
on liquidation.
6. Reacquired Shares. Shares of Series D Preferred Stock converted,
redeemed, or otherwise purchased or acquired by the Corporation shall be
restored to the status of authorized but unissued shares of the Corporation's
preferred stock without designation as to series.
7. No Sinking Fund. Shares of Series D Preferred Stock are not subject to
the operation of a sinking fund.
8. Redemption. The Series D Preferred Stock shall be redeemed by the
Corporation at the Redemption Price upon consummation of a Change of Control
Transaction.
9. Definitions. For purposes of these Articles of Amendment, the following
terms shall have the indicated definitions:
"Change of Control Transaction" shall mean a merger or consolidation of
the Corporation with any other corporation or sale or disposition of the
Corporation of all or substantially all of the Corporation's assets to another
corporation other than (A) a merger or consolidation or sale that would result
in the voting securities of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent thereof),
in combination with the ownership of any trustee or other fiduciary holding
securities under an
8
employee benefit plan of any Corporation, at least 51% of the combined voting
power of the voting securities of the Corporation or such surviving entity or
any parent thereof outstanding immediately after such merger or consolidation,
or (B) a merger or consolidation or sale effected to implement a
recapitalization of the Corporation (or similar transaction) in which no Person
is or becomes the beneficial owner (as defined in the federal securities laws),
directly or indirectly, of securities of the Corporation (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Corporation) representing 25% or more of the combined voting power of
the Corporation's then outstanding voting securities; or (C) a plan of complete
liquidation of the Corporation.
"Redemption Price" shall mean, at the election of the holders of the
Series D Preferred Stock an amount per share equal to (1) the liquidation
preference payable under Section 3, payable in cash or (2) ten times the
consideration per common share being received in the Change of Control
transaction by holders of the Corporation's Common Stock.
The foregoing Amendment to the Corporation's Second Amended and Restated
Articles of Incorporation is filed pursuant to Section 607.1006 of the Act and
was duly adopted by the unanimous written consent of the Corporation's Board of
Directors without a meeting pursuant to Section 607.0821 of the Act and is
effective without approval of the Corporation's shareholders pursuant to
Section 607.0602(4) of the Act.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment as of the ____ day of December, 2002.
------------------------------------------
9
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Series D Preferred Stock)
The undersigned hereby irrevocably elects to convert ______ shares of
Series D Preferred Stock, represented by stock certificate No(s). __________
(the "PREFERRED STOCK CERTIFICATES") into shares of common stock ("COMMON
STOCK") of FLORIDA BANKS, INC., a Florida corporation (the "CORPORATION"),
according to the conditions set forth in the Corporation's Articles of Amendment
to the Second Amended and Restated Articles of Incorporation, dated December __,
2002. If securities are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates. No fee will be charged to
the Holder for any conversion, except for transfer taxes, if any. A copy of each
Preferred Stock Certificate is attached hereto (or evidence of loss, theft or
destruction thereof).
* The undersigned hereby requests that the Corporation issue a certificate or
certificates for the number of shares of Common Stock set forth above in the
name(s) specified immediately below or, if additional space is necessary, on an
attachment hereto:
Name:
---------------------------------
Address:
---------------------------------
---------------------------------
The undersigned represents and warrants that all offers and sales by the
undersigned of the securities issuable to the undersigned upon conversion of the
Series D Preferred Stock shall be made pursuant to registration of the
securities under the Securities Act of 1933, as amended (the "ACT"), or pursuant
to an exemption from registration under the Act.
Date of Conversion:
---------------------------------
Number of Shares of Common Stock to be Issued pursuant to Conversion of Series D
Preferred Stock:
---------------------------------
Signature:
---------------------------------
Name:
---------------------------------
Address:
---------------------------------
---------------------------------
*The Corporation is not required to issue shares of Common Stock until the
original Series D Preferred Stock Certificate(s) (or evidence of loss, theft or
destruction thereof) to be converted are received by the Corporation or its
Transfer Agent.
C-1
