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Exhibit 10.30
AGREEMENT
This Agreement is made as of the 10th day of July, 1996 by and among
CAPITAL BANK, a Florida banking corporation (the "Bank"), CAPITAL FACTORS
HOLDING, INC., a Florida corporation ("Holding"), and CAPITAL FACTORS, INC., a
Florida corporation and subsidiary of Holding ("Factors").
WHEREAS, the Bank, Holding and Factors desire to enter into this
Agreement for the purpose of providing for certain matters relating to the
relationship among the Bank, Holding and Factors.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
1. Restrictions Relating to Share Issuance and Acquisitions.
During the period that and so long as the Bank, presently the sole shareholder
of Holding, or such other entity or person designated in writing by the Bank or
by a previous designee of the Bank and to which or whom the Bank or such
previous designee transfers shares in Holding constituting control of Holding
within the meaning of Section 368(c) of the Internal Revenue Code of 1986, as
amended (the "Code"), that is, shares having at least 80 percent of the total
combined voting power of all classes of stock entitled to vote for directors of
Holding and constituting at least 80 percent of the total number of shares of
each other class of stock of Holding, all as defined in Section 368(c) of the
Code (all such stock in the aggregate constituting "Eighty Percent Control" and
the Bank or any such designee being hereinafter referred to as an "Eighty
Percent Holder"), holds Eighty Percent Control (such period being hereinafter
referred to as the "Eighty Percent Period") and although a vote of shareholders
is not and shall not be required under applicable law or Holding's Amended and
Restated Articles of Incorporation or Factors' Amended and Restated Articles of
Incorporation (collectively, the "Articles"), for the issuance of shares of
capital stock, equity securities or any debt or other instruments that are
convertible or exchangeable into stock or any other equity security of Holding,
Factors or any subsidiary, including options or any other rights to purchase
capital stock, pursuant to any employee benefit plan or stock option plan (a
"Plan") or otherwise, that are authorized under the Articles, but unissued, or,
in many circumstances, to acquire an ownership interest in certain assets as
described below, the advance written approval of the Eighty Percent Holder
shall be required (unless waived in writing by the Eighty Percent Holder) prior
to (i) Holding taking any action, including, without limitation, the issuance
of any capital stock or other equity security or any debt or other instrument
that is convertible or exchangeable into stock or any other equity security of
Holding, including options or any other rights to purchase capital stock,
pursuant to any Plan or otherwise, that would reduce the percentage of
ownership of the Eighty Percent Holder in the capital stock of Holding so that
the Eighty Percent Holder thereafter would not own stock constituting Eighty
Percent Control (treating options or any other rights to purchase capital stock
as exercised immediately upon issuance for purposes of making this
determination) or that otherwise would reduce (or, with the taking of any
action contemplated by the instrument in question, could reduce) the Eighty
Percent Holder's ownership of Holding stock below "control" of Holding within
the meaning
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of Section 368(c) of the Code; (ii) Factors issuing any capital stock, equity
security or any debt or other instrument convertible or exchangeable into its
stock or other equity security or any option or other right to purchase its
stock or other equity security or any right to purchase the same; (iii) Holding
or Factors acquiring or causing any subsidiary to acquire any direct or
indirect ownership interest in any asset that does not constitute part of an
active trade or business within the meaning of Section 355(b) of the Code;
provided, however, that Holding or Factors or any subsidiary of either may
acquire any asset that is similar in nature to the assets it holds on July 1,
1996, so long as that acquisition would not cause Holding or Factors or any
subsidiary of either, as the case may be, not to be engaged in an active trade
or business within the meaning of Section 355(b) of the Code; or (iv) Holding
or Factors taking any action to cause the issuance of capital stock, equity
security or any debt or other instrument that is convertible or exchangeable
into stock or any other equity security by or of any subsidiary, and neither
Holding nor Factors shall take any such action above without the prior written
approval of the Eighty Percent Holder during the Eighty Percent Period. Any
attempt to take such action without the prior written approval of the Eighty
Percent Holder during the Eighty Percent Period shall be null and void and any
purported issuance of capital stock or an equity security or any convertible or
exchangeable debt or other instrument or any right to purchase the same in
Holding, Factors or any subsidiary or any acquisition in violation of this
provision shall not terminate the Eighty Percent Period.
2. Restrictions Relating to Boards of Directors and Bylaws.
During the Eighty Percent Period, neither Holding nor Factors shall take any
action to (i) alter the composition of the board of directors of Factors or the
board of directors of any subsidiary or to remove or replace any director then
serving on the board of directors of Factors or the board of directors of any
subsidiary, (ii) change the number of its directors or the number of directors
of any subsidiary, (iii) fill any vacancy in its board of directors or in the
board of directors of any subsidiary or (iv) alter, amend or repeal, in whole
or in part, its Bylaws, or adopt new Bylaws, without the advance written
approval of the Eighty Percent Holder (unless such requirement is waived in
writing by the Eighty Percent Holder).
3. Prior Approval is not Required for Shareholder Vote. The
obligations of Holding and Factors contained in this Agreement to obtain the
advance written approval of the Eighty Percent Holder shall continue in effect
during the Eighty Percent Period, notwithstanding that neither Holding nor
Factors is required under applicable law or its Articles to have a vote of
shareholders to take any such actions, except possibly with respect to certain
acquisitions, and that neither Holding nor Factors will have a vote of
shareholders to take any such actions, except possibly with respect to certain
acquisitions. The consent or lack of consent of the Eighty Percent Holder with
respect to any matter is not a vote on such matter by the Eighty Percent
Holder.
4. Preemptive Rights. During the Eighty Percent Period, the
Eighty Percent Holder shall have preemptive rights in Holding as set forth
below (the "Preemptive Rights"). Pursuant to the Preemptive Rights, in the
event that Holding proposes to issue and sell additional shares of any capital
stock or equity security, including authorized but unissued shares, to any
person or entity other than the Eighty Percent Holder, including without
limitation (i) pursuant to the exercise of options granted under any Plan, (ii)
to satisfy conversion rights, (iii) as compensation or (iv) otherwise than for
money; then the Eighty Percent Holder shall have the right, for a period of
sixty days from the date of receipt of written notice of any such proposed
issuance or sale, and, in all events, prior to any such
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issuance or sale by Holding, to purchase, at its discretion, up to a percentage
of such capital stock or equity securities equal to its proportionate interest
in Holding prior to any such proposed issuance or sale of such capital stock or
equity security to another entity or person (the "Pro Rata Amount"), at the
proposed issuance price, which right shall be exercisable by written notice to
Holding given within sixty days after receipt by the Eighty Percent Holder of
the written notice of such proposed issuance or sale. If the Eighty Percent
Holder shall fail to respond to Holding within the sixty-day notice period,
such failure shall be regarded as a rejection of its right to participate in
the purchase of such capital stock or equity securities. To the extent that
the Eighty Percent Holder does not elect to purchase its Pro Rata Amount,
Holding may issue all (but not less than all) of the remainder of such capital
stock or equity securities being offered for issuance or sale which the Eighty
Percent Holder has elected not to purchase to any person or entity other than
the Eighty Percent Holder, at the price specified by Holding in its notice to
the Eighty Percent Holder, provided that such issuance is bona fide and made
within 90 days of the date of such notice.
The closing of any purchase under this Section 4 shall be at a date
and time selected by the Eighty Percent Holder within ten business days after
the Eighty Percent Holder is notified of the closing by Holding, or at such
other time and place as the parties to the transaction may agree upon.
Notwithstanding anything contained in this Section 4, the provisions
of Section 1 remain in full force and effect and supersede the provisions of
this Section 4, and no issuance or sale may be made to any party pursuant to
this Section 4 in violation of Section 1.
5. Actions and Obligations of Bank. Holding and Factors are
entering into this Agreement because Bank has agreed to pursue an initial
public offering for Holding. Bank agrees to exercise its rights in a
reasonably prompt manner, subject to its use of diligence reasonably deemed
necessary by the Bank.
6. Injunctive Relief. Each of Holding and Factors agrees that
any violation of the foregoing covenants will cause irreparable injury to the
Bank, that the remedies at law for any such violation will be inadequate to the
Bank, and that the Bank shall, in addition to and not in limitation of any
other rights and/or remedies available at law or in equity, be entitled to
temporary and permanent injunctive relief and specific performance without the
necessity of proving actual damage.
7. Severability. Each of the covenants herein is independent and
severable. Each covenant shall remain in full force and effect regardless of
the enforceability of any other covenant herein. If it shall be determined at
any time by a court of competent jurisdiction that any provision of this
Agreement or any portion thereof is unenforceable, then such portions as shall
be determined to be unreasonably restrictive or unenforceable shall thereupon
be deemed amended as to make such restrictions reasonable in the determination
of such court and the provisions, as amended, shall be enforceable between the
parties to the same extent as if such amendment had been made prior to the date
of any alleged breach of such provision.
8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
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9. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, between
the parties hereto with respect to the subject matter hereof. This Agreement
may not be amended or modified in any way except by a written instrument
executed by all of the parties hereto.
10. Benefits; Binding Effect. This Agreement shall be for the
benefit of and binding upon the parties hereto, their respective successors and
assigns. Nothing in this Agreement shall bind any subsidiary of Holding or
Factors or restrict any such subsidiary from taking any action such subsidiary
or its board of directors is otherwise entitled to take without the consent or
approval of Holding or Factors, as the case may be, in its capacity as a
shareholder of such subsidiary.
IN WITNESS WHEREOF, the undersigned have hereunto set hand and seal as
of the date first written above.
CAPITAL BANK
By: /s/ Xxxxxx X. Xxxxx
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CAPITAL FACTORS HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
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CAPITAL FACTORS, INC.
By: /s/ Xxxx X. Xxxxxx
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