Exhibit 4.4
SUBSCRIPTION RIGHTS AGREEMENT
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This SUBSCRIPTION RIGHTS AGREEMENT (the "Agreement") between Jacksonville
Bancorp, Inc., a Florida corporation (the "Company"), and Independent Bankers'
Bank of Florida, a state (Florida) bank (the "Subscription Agent") is dated as
of November _____, 2001 and is effective as of the effective date of the
Company's Registration Statement on Form SB-2, initially filed with the
Securities and Exchange Commission on November 13, 2001 and the prospectus
included therein (the "Prospectus").
RECITALS
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WHEREAS, the Company proposes to issue non-transferable rights (the
"Rights") entitling the stockholders of record on ______________, 2001 (the
"Record Date") to purchase an aggregate of 225,000 units (the "Units") in a
rights offering (the "Rights Offering");
WHEREAS, each stockholder of the Company's common stock, $.01 par value
(the "Common Stock") on the Record Date (each a "Record Holder") will receive
the right to purchase one Unit for every five shares of Common Stock held and
each Unit will entitle the stockholder to purchase two shares of the Common
Stock and one Class A purchase warrant (the "Warrants") which the stockholder
may exercise at any time before September 30, 2004, (unless the Company extends
the Warrant exercise period) to purchase one share of the Common Stock for an
exercise price of $_________ per share;
WHEREAS, if the Record Holders do not subscribe for all the Units, the
Company proposes to offer the remaining Units to the general public for
subscription (the "Community Offering");
WHEREAS, the Subscription Agent, at the request of the Company, has agreed
to act as the agent of the Company in connection with the issuance,
registration, and exercise of the subscriptions to purchase Units in the Rights
Offering and the Community Offering on the terms and conditions set forth
herein; and
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
AGREEMENT
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1. APPOINTMENT OF SUBSCRIPTION AGENT. The Company hereby appoints the
Subscription Agent to act as registrar and agent for the Company in
accordance with the instructions hereinafter set forth; and the
Subscription Agent hereby accepts such appointment, upon the terms
and conditions hereinafter set forth. The Subscription Agent shall
act in conjunction with SunTrust Bank or any successor transfer agent
appointed by the Company (the "Transfer Agent") in distributing
Subscription Certificates to stockholders and other subscribers.
2. AMOUNT ISSUED. Subject to the provisions of this Agreement, the
Company shall issue to each Record Holder non-transferable rights to
purchase one Unit for every five shares of Common Stock held of
record on the Record Date. The total number of Units available for
subscription in the Rights and Community Offering shall not exceed
225,000. No fractional Rights or cash in lieu thereof will be issued
or paid. Each Unit shall entitle the holder thereof to purchase two
(2) shares of Common Stock, rounding up any remaining fractional
share to the nearest whole number of shares, and one (1) Class A
purchase warrant. If the Record Holders do not subscribe for all the
Units, the Company shall offer the remaining Units to the general
public through the Community Offering. Investors in the Community
Offering must subscribe to purchase a minimum of 25 Units, subject to
the Company's right to accept smaller subscriptions in its
discretion.
3. FORM OF SUBSCRIPTION CERTIFICATES AND SUBSCRIPTION PACKAGE.
(a) The Rights shall be evidenced by certificates (the "Subscription
Certificates") to be delivered by the Transfer Agent. Investors in the
Community Offering may also subscribe to purchase the Units by completing
a Subscription Certificate. The Subscription Certificates shall be in
substantially the form set forth in Exhibit A hereto together with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with any law or with any rules
made pursuant thereto or with any rules of any securities exchange, or as
may consistently herewith be determined by the officers executing such
Subscription Certificates, as evidenced by their execution of such
Subscription Certificates. The Transfer Agent shall cause the number of
Units for which a Record Holder may subscribe to be printed on the
Subscription Certificate being sent to such Record Holder.
(b) The Transfer Agent will mail to each Record Holder the following:
the Prospectus, the letter to stockholders, the Subscription Certificate,
the Notice of Guaranteed Delivery, and the Instructions on Use of
Jacksonville, Inc., Subscription Certificate. If the Record Holder is a
depository, bank, trust company, or securities broker holding shares for
multiple beneficial owners, the Transfer Agent shall mail to such Record
Holder all of the foregoing (except the letter to stockholders) as well as
the letter to brokers, the letter from brokers or other nominees to
beneficial owners and instructions by beneficial owners to brokers or
other nominees. Upon request by the Company, the Transfer Agent shall mail
packages containing the foregoing documents to potential investors in the
Community Offering.
(c) Each Record Holder shall receive one (1) Subscription Certificate
reflecting the total number of Rights the Record Holder is entitled to
exercise (the "Basic Subscription Right"). If a Record Holder subscribes
for all Units available to him or her under the Basic Subscription Right,
the Record Holder may also subscribe for additional units (the
"Oversubscription Privilege") available after satisfaction of all
subscriptions under the Basic Subscription Right.
4. EXECUTION OF SUBSCRIPTION CERTIFICATES. Subscription Certificates shall
be signed on behalf of the Company by its Chairman, President, a Vice President
or its Treasurer and attested by its Secretary. Each such signature upon the
Subscription Certificates may be in the form of a facsimile signature of the
current or any future Chairman, President, Vice President, Treasurer or
Secretary and may be imprinted or otherwise reproduced on the Subscription
Certificates, and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman, President, Vice President,
Treasurer or Secretary notwithstanding the fact that at the time the
Subscription Certificates shall be delivered or disposed of, such person shall
have ceased to hold such office.
If any officer of the Company who shall have signed any of the
Subscription Certificates shall cease to be such officer before the Subscription
Certificates so signed shall have been delivered by the Transfer Agent or
disposed of by the Company, such Subscription Certificates nevertheless may be
delivered or disposed of as though such person had not ceased to be such officer
of the Company; and any Subscription Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such
Subscription Certificate, shall be a proper officer of the Company to sign such
Subscription Certificate, although at the date of the execution of this
Agreement any such person was not such officer.
5. REGISTRATION. The Subscription Certificates provided in the Rights
Offering to Record Holders shall be numbered and shall be registered in a
register (the "Register") to be maintained by the Subscription Agent during the
Rights Offering and transferred from the Subscription Agent to the Transfer
Agent at the termination of the Rights Offering. The Subscription Certificates
made available to potential investors in the Community Offering which are
accepted by the Company shall be numbered and registered in the Register
maintained by the Subscription Agent. The Company and the Subscription Agent may
deem and treat the registered holder of a Subscription Certificate as the
absolute owner thereof (notwithstanding any notation of ownership or other
writing thereon made by anyone), for the purpose of any exercise thereof or any
distribution to the holder thereof and for all other purposes, and neither the
Company nor the Subscription Agent shall be affected by any notice to the
contrary.
6. DURATION AND EXERCISE OF SUBSCRIPTIONS; SUBSCRIPTION PRICE.
(a) The Rights Offering shall expire at 5:00 p.m. Eastern time (the
"Close of Business") on the Rights Offering expiration date set forth in
the Prospectus, subject to extension in the sole discretion of the Company
at any time before the Close of Business on the Rights Offering expiration
date, in a written statement to the Subscription Agent. From the effective
date of the Company's Registration Statement, and thereafter until the
Close of Business on the Rights Offering expiration date, the Rights may
be exercised on any business day. After the Close of Business on the
Rights Offering expiration date, the Rights will become void and of no
value.
(b) The Community Offering shall expire at the Close of Business on
the Community Offering expiration date set forth in the Prospectus,
subject to (i) extension in the Company's sole discretion at any time
before the Close of Business on the Community Offering expiration date in
a written statement to the Subscription Agent or (ii) earlier termination
in the Company's discretion upon written notice to the Subscription Agent
if acceptable subscriptions have been received for all 225,000 Units. At
any time after commencement of the Community Offering and thereafter until
the Close of Business on the Community Offering expiration date, investors
may subscribe to purchase the Units on any business day.
(c) Subject to the provisions of this Agreement, each Unit shall
entitle the holder thereof to purchase from the Company, subject to the
Company's right to accept or reject subscriptions as set forth in Section
6(o) hereof, two fully paid and nonassessable shares of Common Stock and
one Warrant at the price of $____ (U.S.) per share (the "Subscription
Price").
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(d) A Record Holder shall exercise such holder's Rights to purchase
Units and investors in the Community Offering shall subscribe to purchase
Units by depositing with the Subscription Agent at its offices maintained
in Lake Mary, Florida or at such other offices or agencies as may be
designated by the Agent for the purpose of administering the Rights and
Community Offerings (a "Subscription Agent Office"), the Subscription
Certificate duly completed and signed by the Record Holder(s) or by an
investor in the Community Offering or by his or her duly appointed legal
representative or duly authorized attorney, such signature to be
guaranteed if required in the manner described in Section 6(f) hereof, and
paying to the Subscription Agent, in lawful money of the United States of
America by wire transfer, check or bank draft drawn upon a United States
bank, cashier's check or a postal, telegraphic or express money order, an
amount equal to the Subscription Price multiplied by the number of Units
that are being acquired. A subscriber in the Rights or Community Offerings
may not revoke a Subscription Certificate to purchase Units after
submitting it to the Company and the Subscription Agent. If the Company so
instructs the Subscription Agent, delivery of duly signed and completed
Subscription Certificates and payment therefor to the offices of the
Company may constitute valid and timely delivery of a subscription in the
Rights Offering or the Community Offering in accordance with this
Agreement.
(e) If a person wishes to subscribe to purchase Units, but time will
not permit such person to cause both (i) payment in full for each Unit to
be purchased and (ii) the Subscription Certificate to reach the
Subscription Agent on or before the applicable Rights or Community
Offering expiration date, the person may nevertheless subscribe to
purchase the Units if all of the following conditions (the "Guaranteed
Delivery Procedures") are met:
(i) The Subscription Agent receives, on or prior to the applicable
expiration date, a guarantee notice ("Notice of Guaranteed ___
Delivery") ___ substantially in the form distributed with the
Subscription Certificates, from a member firm of a registered national
securities exchange or a member of the National Association of
Securities Dealers, Inc. (the "NASD"), or from a commercial bank or
trust company having an office or correspondent in the United States
(each, an "Eligible Institution"), stating the name of the subscribing
person and the number of Units being subscribed for. The Notice of
Guaranteed Delivery must guarantee the delivery to the Subscription
Agent of (a) payment in full of the subscription price for each Unit
to be purchased, and (b) the Subscription Certificate evidencing such
purchase within three (3) business days following the date of the
Notice of Guaranteed Delivery; and
(ii) payment in full for each Unit to be purchased and the
properly completed Subscription Certificate, with any required
signatures guaranteed, are both received by the Subscription Agent
within three (3) business days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of Guaranteed
Delivery may be delivered to the Subscription Agent in the manner set
forth in Section 19 hereof.
(f) Unless a Subscription Certificate (i) provides that the shares of
Common Stock and Warrants to be issued pursuant to the subscription
represented thereby in the Rights Offering are to be issued in the name of
the Record Holder and delivered directly to the Record Holder at the
address of record, or (ii) is submitted for the account of a member firm
of a registered national securities exchange or a member of the NASD, or a
commercial bank or trust company being an office or correspondent in the
United States in the Rights Offering, signatures on such Subscription
Certificate must be guaranteed by an Eligible Guarantor Institution, as
defined in Rule 17Ad-15 of the Exchange Act. Eligible Guarantor
Institutions include banks, brokers, dealers, credit unions, national
securities exchanges and savings institutions.
(g) Except where this Agreement provides otherwise, upon the tender of
a Subscription Certificate showing that a Record Holder wishes to exercise
the Basic Subscription Right and the payment of the Subscription Price
therefor, and as soon as practicable after the Rights Offering expiration
date (if the Rights Offering is not withdrawn by the Company), the
Subscription Agent shall instruct the Transfer Agent to requisition for
issuance and delivery to the registered holder of such Subscription
Certificate and in the name of the registered holder, or the beneficial
owner in the case of an exercise through a broker or nominee, as the
registered holder may designate, certificates for the shares of Common
Stock and Warrants issuable upon the exercise of the Basic Subscription
Right evidenced by such Subscription Certificate. Such certificates shall
be deemed to have been issued and any person so designated to be named
therein shall be deemed to have become the holder of record of such shares
of Common Stock and Warrants as of the Rights Offering expiration date.
(h) Except where this Agreement provides otherwise, upon the tender of
a Subscription Certificate showing that a Record Holder wishes to exercise
the Oversubscription Privilege and the payment of the Subscription Price
therefor, and as soon as practicable after the Rights Offering expiration
date (if the Rights Offering is not withdrawn by the Company), to the
extent that Units are available for exercise of the Oversubscription
Privilege, the Subscription Agent shall instruct the Transfer Agent to
requisition for issuance and delivery to the registered holder of such
Subscription Certificate and in the name of the registered holder, or the
beneficial owner in the case of an exercise through a broker or nominee,
as the registered holder may designate, certificates for the shares of
Common Stock and Warrants issuable upon the exercise of the
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Oversubscription Privilege evidenced by such Subscription Certificate. If
the Record Holders have exercised the Oversubscription Privileges to
purchase more than the number of Units available after exercise of the
Basic Subscription Right, then the available Units will be allocated among
the oversubscribing Record Holders pro-rata based on the number of Units
subscribed from the Basic Subscription Right, and in such case, the
Subscription Agent shall instruct the Transfer Agent to requisition for
issuance and delivery to the registered holder of such Subscription
Certificate and in the name of the registered holder, or the beneficial
owner in the case of an exercise through a broker or nominee, as the
registered holder may designate, certificates for that pro rata number of
shares of Common Stock and Warrants. Such certificates shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become the holder of record of such shares of Common Stock
and Warrants as of the Rights Offering expiration date.
(i) Except where this Agreement provides otherwise, upon the tender
and the Company's acceptance of a Subscription Certificate and payment of
the Subscription Price in the Community Offering, and as soon as
practicable after the Community Offering expiration date (if the Community
Offering is not withdrawn by the Company), the Subscription Agent shall
instruct the Transfer Agent to requisition for issuance and delivery to
the registered holder of such Subscription Certificate and in the name of
the registered holder, or the beneficial owner in the case of an exercise
through a broker or nominee, as the registered holder may designate,
certificates for the shares of Common Stock and Warrants issuable upon the
purchase of the Units evidenced by such Subscription Certificate to the
extent that the Company has accepted the subscription. Such certificates
shall be deemed to have been issued and any person so designated to be
named therein shall be deemed to have become the holder of record of such
shares of Common Stock and Warrants as of the Community Offering
expiration date.
(j) The Subscription Price will be deemed to have been received by the
Subscription Agent only upon (i) clearance of any uncertified check, (ii)
receipt by the Subscription Agent of any wire transfer, certified check or
bank draft drawn upon a U.S. bank or any postal, telegraphic or express
money order, or (iii) receipt of actual funds pursuant to any Notice of
Guaranteed Delivery. ___ The Company acknowledges that any payment
received after 12:00 p.m. will not be credited until the next business
day.
(k) Daily, during the period of the Rights Offering until its
expiration date, the Subscription Agent shall report to the Company, by
telecopier or e-mail (by 4:00 p.m. Eastern Time), data regarding Rights
exercised, the total number of Units subscribed for, and payments received
therefor. As soon as practicable after receipt of notice from the Company
of its acceptance of any subscription in the Rights Offering, the
Subscription Agent will pay or deliver to the Company all amounts and
other consideration received by it in connection with such subscription.
If the Company has not previously accepted a subscription and such
subscription evidences the exercise of the Basic Subscription Right and
the Oversubscription Privilege to the extent that Units are available for
exercise of the Oversubscription Privilege, Subscription Agent will pay or
deliver to the Company all amounts and other consideration received by it
in connection with such subscription no later than 10 days following the
Rights Offering expiration date.
(l) Daily, during the period of the Community Offering until its
expiration date, the Subscription Agent shall report to the Company, by
telecopier or e-mail (by 4:00 p.m. Eastern Time), data regarding
subscriptions received from investors in the Community Offering, the total
number of Units subscribed for and payments received therefor. As soon as
practicable after receipt of notice from the Company of its acceptance of
any subscription in the Community Offering, the Subscription Agent will
pay or deliver to the Company all moneys and other consideration received
by it in connection with such subscription. The Subscription Agent shall
seek instruction from the Company with respect to subscriptions to the
Community Offering which have not been previously accepted so that
Subscription Agent will be in a position to pay or deliver to the Company
all moneys and other consideration received by it in connection with such
subscriptions no later than 10 days following the Community Offering
expiration date.
(m) The Subscription Agent shall maintain a separate account to be
used solely as a depository for Subscription Price received from
subscribers to be held in such account until the Company accepts the
subscription to which the Subscription Price relates. The Subscription
Agent shall, upon the written direction of the Company, invest the
proceeds received by the Subscription Agent upon the exercise of the
subscriptions, in $1,000 increments above a maintained balance of $50,000,
in direct obligations of the United States of America or obligations for
which the full faith and credit of the United States is pledged to provide
for the payment of principal and interest, certificates of deposit issued
by commercial banks having capital and surplus in excess of One Hundred
Million Dollars ($100,000,000), commercial paper rated A-1 or better by
Standard & Poor's corporation or P-a or better by Xxxxx'x Investors
Services, Inc., the Pegasus Treasury Money Market Fund, or repurchase
agreements collateralized by U.S Treasury securities. Any net profit
resulting from, or interest or income produced by, such investments will
be payable to the Company.
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(n) If either the number of Units being subscribed for is not
specified on a Subscription Certificate, or the payment delivered is not
sufficient to pay the full aggregate Subscription Price for all Units
stated to be subscribed for, the investor will be deemed to have
subscribed for the maximum number of Units that could be exercised for the
amount of the payment delivered by such investor. If the payment delivered
by the investor exceeds the aggregate Subscription Price for the number of
Units evidenced by the Subscription Certificate delivered by such
investor, the payment will be applied to subscribe for Units to the full
extent of the payment delivered by the investor.
(o) The Company will accept subscriptions from Record Holders up to
the Basic Subscription Right and will accept subscriptions from Record
Holders exercising their Oversubscription Privilege, subject to adjustment
pro-rata based on the number of Units purchased by the Record Holder under
the Basic Subscription Right if Record Holders as a group oversubscribe
for more Units than are available in the Rights Offering; provided
however, that the Company is not required to issue shares of Common Stock
to any Record Holder who, in the Company's opinion, would be required to
obtain prior clearance or approval from any state or federal bank
regulatory authority to own or control such shares or Warrants if, at the
expiration date for the Rights Offering, such clearance or approval has
not been obtained or any required waiting period has not expired. The
Company reserves the right to accept subscriptions for Units in the
Community Offering in its sole discretion. The Subscription Agent shall
promptly consult with the Company for specific instructions as to the
acceptance or rejection of Subscription Certificates where the
Subscription Agent has questions concerning timeliness, validity, form,
eligibility or other questions concerning any other failure to comply in
all respects with the terms of the offerings as set forth in the
Prospectus or this Agreement. The Subscription Agent shall also promptly
consult with the Company for specific instructions as to the acceptance or
rejection of Subscription Certificates submitted by proposed investors in
the Community Offering. The Company, in its sole discretion, may waive any
defect or irregularity, or permit a defect or irregularity to be corrected
within such time as it may determine, or reject any purported
subscription. Subscription Certificates will not be deemed to have been
received or accepted until all irregularities have been waived or cured
within such time as the Company determines, in its sole discretion.
(p) The Subscription Agent will promptly return to subscribers in the
Rights Offering or Community Offering, without interest or deduction, any
payment tendered to the Subscription Agent in connection with the
subscription for Units to the extent such subscription is rejected for any
reason.
7. WITHDRAWAL OF RIGHTS OFFERING. The Company may withdraw the offering of
Units in the Rights Offering or the Community Offering at any time on or before
the expiration date of such offering for any reason. Upon written notice of
withdrawal by the Company to the Subscription Agent, the Subscription Agent
shall cancel all Subscription Certificates received in connection with the
offering being cancelled, and any funds received for the exercise of
subscriptions shall be returned to the subscribers in the withdrawn offering as
soon as practicable by mail, without interest or penalty.
8. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the initial issuance of Units and of any shares of Common Stock
and Warrants issuable in the offerings; provided, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Subscription Certificates or any certificates for
shares of Common Stock or Warrants in a name other than the registered holder of
a Subscription Certificate surrendered upon the exercise of a Right, and the
Company shall not be required to issue or deliver such certificates unless or
until the persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid or adequate provision has been made for the
payment thereof.
9. MUTILATED OR MISSING SUBSCRIPTION CERTIFICATES. If any of the
Subscription Certificates is mutilated, lost, stolen or destroyed, the Company
may in its discretion issue, and the Subscription Agent shall deliver, on such
terms as to indemnity or otherwise as they may in their discretion impose (which
shall in the case of a mutilated Subscription Certificate include the surrender
thereof) and upon receipt of evidence satisfactory to the Company and the
Subscription Agent of such mutilation, loss, theft or destruction, issue a
substitute Subscription Certificate. Applicants for such substitute Subscription
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges prescribed by the Company or the Subscription
Agent.
10. RESERVATION OF SHARES. For the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon the subscription for Units, the
Company will at all times through the Close of Business on the expiration date
of the Rights Offering or the Community Offering, reserve and keep available,
free from preemptive rights and out of its aggregate authorized but unissued
shares of Common Stock, the number of shares of Common Stock deliverable upon
the subscription of all available Units, and the Company will authorize and
direct the Transfer Agent at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be required for such purpose.
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Before taking any action that would cause an adjustment pursuant to
Section 12(b) reducing the Subscription Price below the then par value (if any)
of the shares of Common Stock issuable upon subscription for Units, the Company
will take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at the Subscription Price as so adjusted.
The Company covenants that all shares of Common Stock issued upon
subscription for the Units accepted by the Company will, upon issuance in
accordance with the terms of this Agreement, be fully paid and nonassessable and
free from all liens, charges and security interests created by or imposed upon
the Company with respect to the issuance thereof.
11. REGISTRATION OF SHARES. The Company has filed or will file with the
SEC a Registration Statement on Form SB-2 including the Prospectus which has
been or will be declared effective. The Company will use its best efforts to
keep the Registration Statement continuously effective from the date thereof
through the Close of Business ten (10) business days following the expiration
date of the Community Offering or until the earlier withdrawal of the offerings
or the earlier Rights Offering expiration date if the Community Offering is not
commenced. So long as any Units remain available for subscription and any of the
offerings are not withdrawn, the Company will take all necessary action to
obtain and keep effective any and all permits, consents and approvals of
government agencies and authorities and to make filings under federal and state
securities acts and laws, which may be or become necessary in connection with
the issuance and delivery of the Subscription Certificates, the subscription for
Units and the issuance, sale and delivery of the shares of Common Stock issued
upon subscription for the Units; provided, however, in no event shall such
shares of Common Stock be issued and the Company shall have authority to suspend
the subscription for the Units until such permits consents, approvals and
registrations have been obtained.
12. ADJUSTMENT OF SUBSCRIPTION PRICE AND NUMBER OF SHARES OF COMMON STOCK
PURCHASABLE.
(a) Except as provided in subsection (b) below, the Subscription
Price, the number of Units and the number of shares of Common Stock to be
purchased upon subscription for each Unit shall not be adjusted during the
term of the Rights Offering or the Community Offering.
(b) If the Company shall (i) pay a dividend on its shares of Common
Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock or (iv) reclassify the Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), the number of shares of Common Stock to be purchased upon
subscription for a Unit immediately prior thereto shall be proportionately
adjusted so that each subscriber shall be entitled upon purchase of a Unit
to receive the kind and number of shares of Common Stock or other
securities of the Company which each subscriber would have owned or have
been entitled to receive after the happening of any of the events
described above, had such Unit been purchased immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this subparagraph (b) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event. In addition, in the event of any
reclassification of the Common Stock, references in this Agreement to
Common Stock shall thereafter be deemed to refer to the securities into
which the Common Stock shall have been reclassified.
(c) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety or the Company is a party to a merger or
binding share exchange which reclassifies or changes its outstanding
Common Stock before the expiration date of the Rights or Community
Offerings, the Company or such successor or purchasing corporation, as the
case may be, shall execute with the Subscription Agent an agreement, in
form and substance substantially equivalent to this Agreement, that each
subscriber shall have the right thereafter, subject to terms and
conditions substantially equivalent to those contained in this Agreement,
___ upon payment of the Subscription Price in effect immediately prior to
such action to purchase the kind and amount of shares and other securities
and property which such holder would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or
conveyance had such Unit been purchased immediately prior to such action.
The Company shall mail by first-class mail, postage prepaid, to each
registered holder of a Subscription Certificate, notice of the execution
of any such agreement. Such agreement shall provide for adjustments, which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Section 12. The provisions of this subparagraph (c)
shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Subscription Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in
any such agreement relating either to the kind or amount of shares of
stock or other securities or property receivable upon purchase of Units or
with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in
any such agreement.
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13. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. The Company shall issue one
Right for each five shares of Common Stock held by a Record Holder on the Record
Date. The Company shall not distribute fractional Rights or Subscription
Certificates that evidence fractional Rights or are exercisable for the purchase
of fractional shares. Each Right will be exercisable for one Unit consisting of
two shares of Common Stock, rounding up any remaining fractional share to the
nearest whole number of shares, and one Warrant.
14. NOTICES TO RIGHTHOLDERS. If, prior to the expiration date of the
Rights Offering or the Community Offering:
(a) the Company shall declare any dividend payable in any securities
upon its shares of Common Stock or make any distribution (other than a
cash dividend declared in the ordinary course) to the holders of its
shares of Common Stock, or
(b) the Company shall offer to the holders of its shares of Common
Stock any additional shares of Common Stock or securities convertible or
exchangeable into shares of Common Stock or any right to subscribe for or
purchase Common Stock, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of
all or substantially all of its property, assets and business as an
entirety),
(d) then the Company shall cause written notice of such event to be
filed with the Subscription Agent and shall cause written notice of such
event to be given to each of the registered holders of the Subscription
Certificates at such holder's address appearing on the Rights Register, by
first-class mail, postage prepaid, giving of notice to be completed at
least ten (10) calendar days (or twenty (20) calendar days in any case
specified in clause (c) above) prior to the date fixed as a record date or
the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription
rights, or for the determination of stockholders entitled to vote on such
proposed dissolution, liquidation or winding up. Such notice shall specify
such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 14 or any
defect therein shall not affect the legality or validity of any dividend,
distribution, right, option, warrant, dissolution, liquidation or winding
up or the vote upon or any other action taken in connection therewith.
15. MERGER, CONSOLIDATION OR CHANGE OF NAME OF SUBSCRIPTION AGENT. Any
entity into which the Subscription Agent may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Subscription Agent shall be a party, or
any entity succeeding to the escrow business of the Subscription Agent, shall be
the successor to the Subscription Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Subscription Agent under the provisions of Section 17.
16. SUBSCRIPTION AGENT. The Subscription Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Subscription Certificates, by
their acceptance thereof, shall be bound:
(a) The Subscription Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Subscription Certificates to be complied with by the
Company nor shall it at any time be under any duty or responsibility to
any holder of a Right or subscriber in the Community Offering to make or
cause to be made any adjustment in the Subscription Price or in the number
of shares of Common Stock issuable upon exercise of any subscription for
the Units (except as instructed by the Company).
(b) The Company agrees to indemnify the Subscription Agent and save
it harmless against any and all losses, liabilities and expenses,
including judgments, costs and reasonable counsel fees and expenses, for
anything done or omitted by the Subscription Agent arising out of or in
connection with this Agreement except as a result of its negligence,
willful misconduct or bad faith.
(c) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Subscription Agent for the carrying out or performing
the provisions of this Agreement.
(d) The Subscription Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the President or the Chief Financial Officer and Secretary
of the Company, and to apply to such officers for advice or instructions
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in connection with its duties, and shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any
statement signed by any one of such officers of the Company with respect
to any fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
(e) The Company shall pay to the Subscription Agent for its services
hereunder a fee of $1,500.00, plus an additional fee of $5.00 for each
check issued, $10.00 for each wire transfer, $5.00 for each facsimile
transmission or e-mail, and $.50 for each photocopy necessitated in the
performance of duties, with total fees for services not to exceed
$2,000.00. The Company will pay all actual expenses and costs incurred by
the Subscription Agent in performing obligations under this Subscription
Agreement. The Company shall pay such fees and expenses upon receipt of an
invoice therefor after the expiration date of the Community Offering.
(f) In the event of any disagreement between the Company and any
subscriber resulting in adverse claims and demands being made in
connection with any subscription funds submitted in connection with the
Rights Offering or the Community Offering that the Subscription Agent is
unable to resolve in accordance with the terms of this Agreement or the
statements set forth in the Prospectus (a "Subscriber Disagreement"), the
Subscription Agent shall be entitled to refuse to comply with any such
claims or demands of such subscriber as long as such Subscriber
Disagreement may continue, and in so refusing, may make no delivery or
other disposition of any subscription funds then held under this Agreement
to any person other than the Company, and in so doing shall be entitled to
continue to refrain from acting until (a) the Subscriber Disagreement
shall have been finally settled by binding arbitration or finally
adjudicated in a court having jurisdiction of the subscription funds
involved herein or affected hereby or (b) the Company and the subscriber
have resolved the Subscriber Disagreement by written agreement and the
Subscription Agent shall have been notified in writing of such agreement.
In the event of such Subscriber Disagreement, the Subscription Agent may,
but need not, institute legal proceedings to resolve such Subscriber
Disagreement and tender into the registry or custody of any court of
competent jurisdiction in Florida all money or property in the
Subscription Agent's possession under the terms of this Agreement, and
thereupon to be discharged from all further duties under this Agreement.
The filing of any such legal proceeding shall not deprive the Subscription
Agent of compensation earned prior to such filing. Upon the Company's
reasonable request or direction, the Subscription Agent shall take legal
action in connection with this Agreement or in connection with its
enforcement and appear in, prosecute or defend any action or legal
proceeding in connection with the Rights Offering or the Community
Offering provided that indemnification for costs, expenses, losses or
liabilities incurred by the Subscription Agent in connection therewith
shall be furnished.
17. CHANGE OF SUBSCRIPTION AGENT. If the Subscription Agent shall resign
(such resignation to become effective not earlier than sixty (60) days after the
giving of written notice thereof to the Company and the registered holders of
Subscription Certificates) or shall become incapable of acting as Subscription
Agent or if the Board of Directors of the Company shall by resolution remove the
Subscription Agent (such removal to become effective not earlier than thirty
(30) days after the filing of a certified copy of such resolution with the
Subscription Agent and the giving of written notice of such removal to the
registered holders of Subscription Certificates), the Company shall appoint a
successor to the Subscription Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after such removal or after it
has been so notified in writing of such resignation or incapacity by the
Subscription Agent, then either the Subscription Agent or registered holder of
any Subscription Certificate may apply to any court of competent jurisdiction
for the appointment of a successor to the Subscription Agent. Pending
appointment of a successor to the Subscription Agent, either by the Company or
by such a court, the duties of the Subscription Agent shall be carried out by
the Company. Any successor Subscription Agent, whether appointed by the Company
or by such a court, shall be a bank or trust company, in good standing,
incorporated under the laws of any state or of the United States of America. As
soon as practicable after appointment of the successor Subscription Agent, the
Company may cause written notice of the change in the Subscription Agent to be
given to each of the registered holders of the Subscription Certificates at such
holder's address appearing on the Rights Register. After appointment, the
successor Subscription Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Subscription
Agent without further act or deed. The former Subscription Agent shall deliver
and transfer to the successor Subscription Agent any property at the time held
by it hereunder and execute and deliver, at the expense of the Company, any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
give any notice provided for in this Section 17 or any defect therein, shall not
affect the legality or validity of the removal of the Subscription Agent or the
appointment of a successor Subscription Agent, as the case may be.
18. RIGHTHOLDER NOT DEEMED A STOCKHOLDER. Nothing contained in this
Agreement or in any of the Subscription Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends or
to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company.
8
19. NOTICES TO COMPANY AND SUBSCRIPTION AGENT. All notices, consents,
waivers and other communications under this Agreement must be in writing, and
will be deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), or (c) five days
after mailing by first class mail, postage prepaid, in each case to the
appropriate address set forth below (or to such other addresses and telecopier
numbers as a party may designate by notice to the other parties):
Jacksonville Bancorp, Inc.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III
Telecopier: (000) 000-0000
Investment Services Group
Independent Bankers' Bank of Xxxxxxx
Xxxx Xxxxxx Xxx 000000
Xxxx Xxxx, Xxxxxxx 00000-0000
Telecopier: (000) 000-0000
The Subscription Agent maintains a Subscription Agent Office at 000 Xxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxx 00000-0000. If the Company shall
fail to maintain such office or agency or shall fail to give such notice of any
change in the location thereof, presentation may be made and notices and demands
may be served at the principal office of the Subscription Agent.
20. SUPPLEMENTS AND AMENDMENTS. This Agreement constitutes the full and
integrated agreement of the parties hereto with respect to the subject matter
hereof. The Company and the Subscription Agent may from time to time supplement
or amend this Agreement without the approval of any holders of Subscription
Certificates in order to cure any ambiguity, error or other mistake in this
Agreement, or to correct or supplement any provision contained herein that may
be defective or inconsistent with any other provision herein or in the
Registration Statement, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Subscription Agent may deem
necessary or desirable and that shall not adversely affect, alter or change the
interests of the registered holders of the Subscription Certificates in any
material respect.
Any supplement or amendment of this Agreement which may not be made by the
Company and the Subscription Agent without the approval of registered holders of
Subscription Certificates pursuant to the preceding paragraph shall require the
approval of the registered holders of Subscription Certificates entitled to
purchase upon exercise thereof a majority of the Units which may be purchased
upon the exercise of all outstanding Subscription Certificates at the time that
such amendment or supplement is to be made.
21. SUCCESSORS. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Subscription Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
22. TERMINATION. This Agreement shall terminate on the later of (a) the
Close of Business on the date which is fifteen (15) business days after the
expiration or earlier termination date of the Community Offering or (b) if
subscriptions for the Units have been suspended under Section 11 before the
expiration date of the Rights Offering or the Community Offering, and such
extension extends beyond the expiration date of the Community Offering, the 15th
business day after the termination of the suspension of the offering. Upon
termination of the Agreement, the Subscription Agent shall send to the Company
all canceled Subscription Certificates and related documentation as required by
applicable law or as reasonably requested by the Company.
23. GOVERNING LAW. This Agreement and each Subscription Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Florida and for all purposes shall be construed in accordance with the internal
laws of the State of Florida without regard to principles of conflict of law or
choice of laws of the State of Florida or any other jurisdiction which would
cause the application of any laws other than of the State of Florida.
24. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Subscription Agent and the registered holders of the Subscription Certificates
any legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Subscription Agent and the registered holders of the Subscription Certificates.
25. COUNTERPARTS. This Agreement may be executed in a number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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26. HEADINGS. The headings of sections of this Agreement have been
inserted for convenience of reference only, and are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
27. WAIVER. No waiver by either party hereto of the other party's breach
of or failure to comply with any condition or provision of this Agreement to be
performed by such other party shall operate as a waiver of or estoppel with
respect to any subsequent or other breach or failure to comply.
IN WITNESS WHEREOF the parties hereto have caused this Subscription Rights
Agreement to be executed and delivered as of the day and year first above
written.
JACKSONVILLE BANCORP, INC.
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
INDEPENDENT BANKERS' BANK OF FLORIDA
By: __________________________________________
Name: ________________________________________
Title: _______________________________________
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