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 30, 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 20, 2001 and the prospectus included therein
(the "Prospectus").
RECITALS
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WHEREAS, the Company proposes to issue nontransferable rights (the
"Rights") entitling the stockholders of record on a date to be set forth in the
final Prospectus (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 set forth in the final Prospectus;
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 nontransferable rights to purchase one Unit
for every five shares of Common Stock held of record on the Record Date (the
"Basic Subscription Right"). 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
For 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. 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 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 per Unit set forth in the final Prospectus (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 17A(d)-15 of the Exchange Act. Eligible Guarantor
Institutions include banks, brokers, dealers, credit unions, national
securities exchanges and savings institutions. No signature guarantees
shall be required for Subscription Certificates submitted by investors in
the Community Offering.
(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 earlier of the Company's
instruction or 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 earlier of the
date the certificates are issued to such person or 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
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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 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 earlier of instruction by the Company or 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
earlier of the date the certificates are issued to such person or 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 deduction.
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, or shall instruct
the Transfer Agent to, 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 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 Offering, 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 number 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. 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 engage in any of the events set forth in clauses
(i) through (iv) of Section 12(b) or in Section 12(c), 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),
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 Record Holders at such holder's address appearing on the 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 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
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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 (i) 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 (ii) 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 Record Holders 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 Record Holders, 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 any Record Holder 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 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.
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 (a) when delivered by hand (with written
confirmation of receipt), (b) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), or (c)
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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 after the
expiration or earlier termination date of the Rights Offering if the Company
decides not to engage in 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 Record 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 Record Holders.
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.
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.
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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: /s/ Xxxxxxx X. Xxxxx, III
Name: Xxxxxxx X. Xxxxx, III
Title: Chief Executive Officer and President
INDEPENDENT BANKERS' BANK OF FLORIDA
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
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