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EXHIBIT 1.1
1,000,000 Shares Common Stock
Coastal Community Group, Inc.
_________, 1999
MANAGING DEALER AGREEMENT
Coast Partners Securities, Inc.
As representative of the several
Dealers named in Schedule A
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
Coastal Community Group, Inc., a Florida corporation (the "Offeror"),
proposes to issue and sell 1,000,000 shares (the "Common Shares") of the
Offeror's common stock, $0.01 par value per share (the "Common Stock"), the
terms of which are more fully described in the Prospectus (as defined in Section
2). Pursuant to the terms of this Agreement, Coast Partners Securities, Inc.
(the "Managing Dealer"), acting for itself and on behalf of the several dealers
named in Schedule A (the "Dealers"), who are acting severally and not jointly,
will use their best efforts to solicit subscriptions to purchase a minimum of
900,000 and a maximum of 1,000,000 Common Shares at a purchase price of $10.00
per share (the "Purchase Price"), with a minimum purchase from any investor of
250 shares or $2,500 and a maximum purchase of 50,000 shares or $500,000 unless
waived by the Offeror (the "Offering"). The Offeror, the Managing Dealer and the
Dealers hereby confirm their agreement in connection with the Offering.
1. SALE OF COMMON SHARES; COMMISSIONS.
(a) On the basis of the Dealers' representations, warranties and
covenants, but subject to the terms and conditions of this Agreement, the
Offeror hereby grants the Dealers the exclusive right to solicit purchasers
for the Common Shares during the period between the effective date of this
Agreement (as defined in Section 9 hereof) and the Sales Termination Date
(defined in Section 1(e)), such period being the Offering Period, and,
subject to the Offeror's performance of all of its obligations to be
performed hereunder and to the completeness and accuracy of all of the
Offeror's representations and warranties contained herein, the Dealers
agree to use their best efforts to find purchasers for the Common Shares at
the Purchase Price. Notwithstanding the preceding sentence, the Offeror
reserves the right to solicit the potential investors who have been
identified by the Offeror in writing to the Managing Dealer prior to the
Closing Date (defined in Section 1(g) below). The Offeror also reserves the
right to reject any prospective investor, and no commission will be payable
to a Dealer for any proposed sale to any rejected investor.
(b) Each investor desiring to purchase Common Shares will be
required to complete, execute and deliver a subscription agreement
substantially similar to the form
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attached as an exhibit hereto (a "Subscription"), together with payment of
the Purchase Price for the Common Shares subscribed for, which payment
shall be made by certified or bank cashier's check. Each Dealer will have
the right to review Subscriptions solicited by it and to reject the tender
of any investor which such Dealer deems not acceptable. Copies of all
Subscriptions which have not been rejected by the Dealers shall be
forwarded together with the investor's check, in the amount of the Purchase
Price for the subscribed Common Shares and payable to "SunTrust Bank,
Miami, N.A. as Escrow Agent - Coastal Community Group, Inc.," to SunTrust
Bank, Miami, N.A., 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Escrow
Agent"), by noon of the first Business Day after receipt thereof by the
Dealer. All Dealers will comply with the requirements of Rule 15c2-4 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"). "Business
Day" means any day on which commercial banks are not authorized or required
to close in Miami, Florida.
(c) Originals of all Subscriptions will be forwarded to the Offeror,
and copies of all Subscriptions will be forwarded to the Managing Dealer,
by noon of the second Business Day after receipt thereof by the Dealer.
Promptly upon receipt thereof, the Offeror will determine whether it wishes
to reject the investor's Subscription and will notify the tendering Dealer
if such Subscription is rejected. Rejected Subscriptions will be returned
promptly to the tendering Dealer. Payment for the Common Shares subscribed
for in Subscriptions which have been accepted by the Offeror will be
delivered to the Offeror on the applicable closing date.
(d) In addition to forwarding Subscriptions to the Escrow Agent,
Dealers will provide such other information deemed reasonably necessary by
the Offeror and all documents, if any, required under state securities
laws.
(e) All Subscriptions by investors for Common Shares will be
conditional upon (A) the tendering of Subscriptions for an amount of Common
Shares equal to at least 900,000 ("Minimum Subscriptions") by ______, 1999
[90 DAYS], which may be extended to _______, 1999, at the election of the
Offeror (the "Sales Termination Date"), (B) upon the Offeror's receipt from
the Dealers on the Closing Date (defined in Section 1(g)) of funds from
investors representing an aggregate Purchase Price of $9,000,000 ("Minimum
Payments"), and (C) receipt by the Offeror of a "Notice of Intent to
Approve" from the Florida Department of Banking and Finance within 180 days
of the Sales Termination Date. If Minimum Subscriptions have not been
accepted by the Sales Termination Date, or Minimum Payments have not been
accepted on the Closing Date, or the Offeror does not receive a Notice of
Intent to Approve within 180 days of the Sales Termination Date, this
Agreement will terminate and all funds previously contributed by
subscribers will be returned promptly, in full, with interest, if any.
(f) If Minimum Subscriptions have been accepted before the Sales
Termination Date, the Offeror and the Escrow Agent shall so notify the
Managing Dealer in writing. The "Initial Closing Date" shall be the first
full Business Day following the date on which the Minimum Subscriptions are
achieved and the Company has received the Notice of Intent to Approve, or
such day thereafter as shall be mutually agreed upon by the Managing Dealer
and the Offeror. Subject to fulfillment of the conditions
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specified in Section 6 hereof, on the Initial Closing Date payment of the
Purchase Price for the Common Shares for which the Dealers have found
purchasers as of the Initial Closing Date, and delivery, with respect to
each purchaser, of a copy of the Subscription signed by such purchaser,
shall be made to the Offeror at the offices of Gunster, Yoakley,
Xxxxxx-Xxxxx & Xxxxxxx, P.A., counsel for the Offeror, at One Biscayne
Tower, Two South Biscayne Blvd., Suite 3400, Xxxxx, Xxxxxxx 00000 (the
"Gunster Offices"), or at such other place as shall be agreed to by the
Managing Dealer and the Offeror.
(g) If at least Minimum Subscriptions are achieved but less than all of
the Common Shares have been purchased on the Initial Closing Date, the
Offering Period shall continue until 10:00 a.m., Miami time on the Sales
Termination Date, or at such other time not more than 25 Business Days
after the Sales Termination Date as the Offeror and the Managing Dealer
shall determine (the "Closing Date"). At all times during the Offering, the
Dealers shall follow the procedures proscribed by this Section 1. Common
Shares will be issued at closing dates ("Subsequent Closing Dates")
occurring after the Initial Closing Date and prior to the Closing Date as
agreed upon by the Managing Dealer and the Offeror. All closings of the
Offering, if any, shall take place at the Gunster Offices or at such other
place as shall be agreed to by the Managing Dealer and the Offeror.
(h) If Subscriptions are received for more than $10,000,000 then the
Offeror may accept one Subscription over another or allocate Common Shares
among subscribers as the Offeror deems fit. Subject to the Offeror's right
to reject any prospective investor as set forth in Section 1(a), the
Offeror will accept in the order designated by the Managing Dealer all
Subscriptions which are specifically designated, if the Offeror can do so
without violating applicable securities laws.
(i) On the Closing Date, Subscriptions for Common Shares received by
the Dealers and delivered to the Offeror which have not been rejected by
the Offeror will be deemed to be accepted.
(j) On a closing date, the Offeror will deliver certificates for the
Common Shares to the Dealers. Certificates for Common Shares to be
purchased hereunder shall be in book-entry form and registered in the name
of Cede & Co. not later than 12:00 noon, Miami time, two Business Days
prior to the applicable closing date.
(k) In consideration for the performance of its obligations hereunder,
the Managing Dealer shall be entitled to a commission from the Offeror of
$.70 per Common Share sold in the Offering; provided, that no commission
shall be paid with respect to Common Shares sold to investors who have been
identified by the Offeror in writing to the Managing Dealer prior to the
Closing Date, up to a maximum of 400,000 Common Shares. In the event
Minimum Subscriptions are not received or Minimum Payments are not made and
the Offering is terminated, or in the event that the Offeror does not
receive a Notice of Intent to Approve within 180 days of the Sales
Termination Date, the Managing Dealer will not be entitled to receive any
commissions and will not be reimbursed for its expenses, except as provided
in Section 4 below. Any commissions,
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investment banking fees and allowable expenses will be payable to the
Managing Dealer on the Closing Date.
(l) Each Dealer may sell Common Shares to dealers chosen by it (the
"Selected Dealers") at the Purchase Price less the applicable Selected
Dealers' concessions set forth in the Prospectus, for re-offering by
Selected Dealers to the public at the Purchase Price. The Dealers may
allow, and Selected Dealers may re-allow, a concession set forth in the
Prospectus (which shall not exceed $.60) to certain other brokers and
dealers.
(m) In addition to the commission payable to the Managing Dealer
specified in subsection (k) above, the Offeror shall pay to the Managing
Dealer an investment banking fee equal to $.25 per Common Share sold in the
Offering.
(n) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Offeror and its officers,
directors, agents and employees will not, prior to the Closing Date,
directly or indirectly contact or communicate with any potential investor
with respect to an investment in the Common Shares, except to the extent
required by applicable securities laws and regulations and except with
respect to investors who have been identified by the Offeror in writing to
the Managing Dealer prior to the Closing Date.
(o) The Managing Dealer hereby represents and warrants to the Offeror
that it has the authority to enter into this Agreement on behalf of the
several Dealers and that the Dealers have indicated to the Managing Dealer
their intention to severally and not jointly solicit, on a best-efforts
basis, purchasers for the Common Shares as provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offeror represents and warrants to the several Dealers that:
(i) The Offeror has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form SB-2 (File Number 333-75033) for the registration of $10,000,000
aggregate amount of Common Shares under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus
subject to completion included therein, and one or more amendments or
supplements to such registration statement may have been so filed, in
each case in conformity with the requirements of the 1933 Act, the
rules and regulations promulgated thereunder (the "1933 Act
Regulations"). Copies of such registration statement, including any
amendments thereto, each Preliminary Prospectus (as defined herein)
contained therein and the exhibits, financial statements and schedules
to such registration statement, as finally amended and revised, have
heretofore been delivered by the Offeror to the Dealers. After the
execution of this Agreement, the Offeror will file with the Commission
(A) if such registration statement, as it may have been amended, has
been declared by the Commission to be effective under the 1933 Act, a
prospectus in the form most recently included in an
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amendment to such registration statement (or, if no such amendment
shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act
Regulations ("Rule 430A") or permitted by Rule 424(b) of the 1933 Act
Regulations ("Rule 424(b)") and as have been provided to and not
objected to by the Dealers prior to (or as are agreed to by the
Dealers subsequent to) the execution of this Agreement, or (B) if such
registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not
objected to by the Dealers prior to (or is agreed to by the Dealers
subsequent to) the execution of this Agreement. Except as required by
applicable law as evidenced by a written opinion of counsel relating
thereto, the Offeror will not file any amendment to the registration
statement or any amended Preliminary Prospectus or any amendment
thereto, of which the Dealers have not been previously furnished a
copy or to which the Dealers or counsel thereto shall have reasonably
objected in writing. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time
when it was or is declared effective under the 1933 Act, including (1)
all financial schedules and exhibits thereto, and (2) any information
omitted therefrom pursuant to Rule 430A and included in the Prospectus
(as hereinafter defined); the term "Preliminary Prospectus" means each
preliminary prospectus subject to completion filed with such
Registration Statement or any amendment thereto (including the
preliminary prospectus subject to completion, if any, included in the
Registration Statement and each prospectus filed pursuant to Rule
424(a) under the 0000 Xxx); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)(1)
or (4) if no prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules. The date on
which the Registration Statement becomes effective under the 1933 Act
is hereinafter referred to as the "Effective Date."
(ii) No order preventing or suspending the use of any
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) has been issued by the Commission, nor has the
Commission, to the knowledge of the Offeror, threatened to issue such
an order or instituted proceedings for that purpose. Each Preliminary
Prospectus, at the time of filing thereof, (A) complied in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and (B) did not contain an untrue statement of fact or
omit to state any fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Offeror by the Dealers expressly for inclusion in the
Prospectus beneath the heading "Plan of Distribution" and on the cover
page of the Prospectus with respect to price, placement discounts and
terms of the offering (such information referred to herein as the
"Dealer Information").
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(iii) At the Effective Date and at all times subsequent thereto,
up to and including the Closing Date, the Registration Statement and
any post-effective amendment thereto (A) complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not and will not contain an untrue
statement of fact or omit to state any fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. At the
Effective Date and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Common Shares,
including, without limitation, the Closing Date, the Prospectus, as
amended or supplemented, (1) complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and (2) did not contain and will not contain an untrue
statement of fact or omit to state any fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
Dealer Information.
(iv) The Offeror is duly incorporated, validly existing and in
good standing under the laws of the State of Florida, with full
corporate power and authority to own, lease and operate its properties
and conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The Offeror has all necessary power and
authority to issue and sell the Common Shares, to enter into and
perform its obligations under this Agreement and to consummate the
transactions herein contemplated; the Offeror is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership of its property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Offeror; the Offeror has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus; the Offeror is not a party
to or bound by any agreement or instrument other than this Agreement
and the agreements and instruments described in the Prospectus; the
Offeror has no liabilities or obligations other than those arising out
of the transactions contemplated by this Agreement and as described in
the Prospectus; the Offeror is not a party to or subject to any
action, suit or proceeding of any nature.
(v) The Offeror does not own or control, directly or indirectly,
more than 5% of any class of equity security of any corporation,
association or other entity. The Offeror intends to use the proceeds
from the Offering to acquire a subsidiary, Coastal Community Bank (the
"Bank").
(vi) All of the issued and outstanding shares of capital stock of
the Bank, when issued to the Offeror, will be (A) duly authorized and
validly issued, (B) fully paid and nonassessable except to the extent
such shares may be deemed assessable under 12 U.S.C. Section 55 or 12
U.S.C. Section 1831o, and (C) except
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as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), directly owned by
the Offeror free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon voting or transfer, preemptive
rights, claim or equity. Except as disclosed in the Prospectus, there
are no outstanding rights, warrants or options to acquire or
instruments convertible into or exchangeable for any capital stock or
equity securities of the Bank.
(vii) The capital stock of the Offeror conforms to the
description thereof contained in the Prospectus or the financial
information included therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding
shares of capital stock and equity securities of the Offeror have been
duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of the Offeror; no
person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offeror. Except as disclosed
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), there are no outstanding rights,
options or warrants to acquire from the Offeror any securities of the
Offeror other than options issued under the Offeror's 1998 Incentive
Stock Option Plan, Outside Director Stock Option Plan and Restricted
Non-Statutory Stock Option Plan, and warrants issued to certain of the
Offeror's organizers, and there are no outstanding securities
convertible into or exchangeable for any such securities and no
restrictions upon the voting or transfer of any capital stock of the
Offeror pursuant to the Offeror's corporate charter or bylaws or any
agreement or other instrument to which the Offeror is a party or by
which the Offeror is bound.
(viii) The Offeror has all requisite power and authority to issue,
sell and deliver the Common Shares in accordance with and upon the
terms and conditions set forth in this Agreement, the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). All corporate
action required to be taken by the Offeror for the authorization,
issuance, sale and delivery of the Common Shares in accordance with
such terms and conditions has been validly and sufficiently taken. The
Common Shares, when delivered in accordance with this Agreement, will
be duly and validly issued and outstanding, will be fully paid and
nonassessable, will not be issued in violation of or subject to any
preemptive or similar rights, and will conform in all material
respects to the description thereof in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Offeror's Articles of
Incorporation. None of the Common Shares, immediately prior to
delivery, will be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
(ix) The Offeror has complied with all federal, state and local
statutes, regulations, ordinances and rules applicable to the
ownership and operation of its properties or the conduct of its
business as described in and contemplated by the
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Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted except for such matters as would not be
expected to have a materially adverse effect thereon.
(x) The Offeror and the Bank have all governmental and
regulatory permits, easements, consents, licenses, franchises and
other authorizations from all appropriate federal, state, local or
other public authorities ("Permits") as are necessary to own and lease
their properties and conduct their businesses in the manner described
in and contemplated by the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted, except for
necessary approvals from the Florida Department of Banking and Finance
(the "FDBF"), the Federal Deposit Insurance Corporation (the "FDIC")
and the Federal Reserve Bank of Atlanta (the "FRBA"), and except as
such matters that would not have a material adverse effect on the
Offeror and the Bank or their financial condition, earnings, business,
prospects or results of operations. All such Permits are in full force
and effect and each of the Offeror and the Bank are complying
therewith in all material respects, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be adequately disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) except as such matters that would not have a material
adverse effect on the Offeror and the Bank or their financial
condition, earnings, business, prospects or results of operations.
Such Permits contain no restrictions that would materially impair the
ability of the Offeror or the Bank to conduct their businesses in the
manner described in and contemplated by the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and as currently being conducted.
Neither the Offeror nor the Bank has received notice or otherwise has
knowledge of any proceeding or action relating to the revocation or
modification of any such Permit.
(xi) The Bank has applied, or at the appropriate time shall
apply, for approval from the FDBF to operate as a Florida state
chartered commercial bank. The Bank has applied, or at the appropriate
time shall apply, for deposit insurance from the FDIC. The Bank has
applied, or at the appropriate time shall apply, for membership in the
Federal Reserve System from the FRBA. The Offeror has applied, or at
the appropriate time shall apply, for approval from the FRBA to
operate as a registered bank holding company.
(xii) Neither the Offeror nor the Bank is in breach or violation
of its corporate charter, bylaws or other governing documents. Neither
the Offeror nor the Bank is, and to the knowledge of the Offeror no
other party is, in violation, breach or default (with or without
notice or lapse of time or both) in the performance or observance of
any term, covenant, agreement, obligation, representation, warranty or
condition contained in (A) any contract, indenture,
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mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license, Permit or any other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound, which such breach, violation or default would reasonably be
expected to have a material adverse effect on the Offeror and the Bank
on a consolidated basis, and to the knowledge of the Offeror, no other
party has asserted that the Offeror or the Bank is in such violation,
breach or default (provided that the foregoing representations in
clause (A) shall not apply to defaults by borrowers from the Bank), or
(B) except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), any order,
decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over the Offeror or the Bank or any of
their respective properties the breach, violation or default of which
would have a material adverse effect on the financial condition,
earnings, business, prospects or results of operations of the Offeror
and the Bank on a consolidated basis.
(xiii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) do not and will not conflict with, result in the creation
or imposition of any lien, claim, charge, encumbrance or restriction
upon any property or assets of the Offeror or the Bank or the Common
Shares pursuant to, constitute a breach or violation of, or constitute
a default under, with or without notice or lapse of time or both, any
of the terms, provisions or conditions of the charter or bylaws of the
Offeror or the Bank, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license, Permit or
any other agreement or instrument to which the Offeror or the Bank is
a party or by which any of them or any of their respective properties
may be bound or any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offeror or the Bank or any of their respective properties which
conflict, creation, imposition, breach, violation or default would
have either singly or in the aggregate a material adverse effect on
the financial condition, earnings, business, prospects or results of
operations of the Offeror and the Bank on a consolidated basis. No
authorization, approval, consent or order of, or filing, registration
or qualification with, any person (including, without limitation, any
court, governmental body or authority) is required in connection with
the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus, except such as may be required by, and
have been obtained under, the 1933 Act, state securities laws,
Interpretations or Rules of the National Association of Securities
Dealers, Inc. ("NASD") in connection with the offer and distribution
of the Common Shares by the Dealers.
(xiv) The Offeror has all requisite corporate power and authority
to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offeror and
constitutes the legal, valid and binding agreement of the Offeror,
enforceable against the Offeror in accordance with its
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terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy, moratorium, reorganization,
fraudulent conveyance or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws or public policy.
(xv) The Offeror and the Bank have good and marketable title in
fee simple to all real property and good title to all personal
property owned by them, in each case free and clear of all security
interests, liens, mortgages, pledges, encumbrances, restrictions,
claims, equities and other defects except such as are referred to in
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or such as do not materially affect the
value of such property in the aggregate and do not materially
interfere with the use made or proposed to be made of such property;
and all of the leases under which the Offeror or the Bank hold real or
personal property are valid, existing and enforceable leases and in
full force and effect and do not interfere with the use made or
proposed to be made of such real or personal property, and neither the
Offeror nor the Bank is in default of any of the terms or provisions
of any leases, except as such matters that would not have a material
adverse effect on the Offeror and the Bank or their financial
condition, earnings, business, prospects or results of operations.
(xvi) Morrison, Brown, Argiz & Co., who have certified the
financial statements of the Offeror, including the notes thereto,
included in the Registration Statement and Prospectus, are independent
public accountants with respect to the Offeror, as required by the
1933 Act and the 1933 Act Regulations.
(xvii) The financial statements, including the notes thereto,
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) with respect to the Offeror comply with the 1933 Act and
the 1933 Act Regulations and present fairly the financial position of
the Offeror as of the dates indicated and the results of operations,
cash flows and shareholders' equity of the Offeror for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected and
summary financial data concerning the Offeror included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus) comply with the 1933 Act and the 1933 Act Regulations,
present fairly the information set forth therein, and have been
compiled on a basis consistent with that of the financial statements
of the Offeror in the Registration Statement and the Prospectus (or
such Preliminary Prospectus). The other financial, statistical and
numerical information with respect to the Offeror and the Bank
included in the Registration Statement and the Prospectus (or such
Preliminary Prospectus) comply with the 1933 Act and the 1933 Act
Regulations, present fairly the information shown therein, and to the
extent applicable have been compiled on a basis consistent with the
financial statements of the Offeror included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus).
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(xviii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), except as
otherwise stated therein:
(A) neither the Offeror nor the Bank has sustained any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which would
have a material adverse effect on the financial condition, earnings,
business, prospects or results of operations of the Offeror and the
Bank on a consolidated basis;
(B) there has not been any change in, or any development
which is likely to have a material adverse effect on, the financial
condition, earnings, business, prospects or results of operations of
the Offeror and the Bank on a consolidated basis, whether or not
arising in the ordinary course of business;
(C) neither the Offeror nor the Bank has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, other than in the ordinary course of business which
would have a material adverse effect on the financial condition,
earnings, business, prospects or results of operations of the Offeror
and the Bank on a consolidated basis;
(D) the Offeror has not declared or paid any dividend and
neither the Offeror nor the Bank has become delinquent in the payment
of principal or interest on any outstanding borrowings; and
(E) there has not been any change in the capital stock,
equity securities, longterm debt, obligations under capital leases or,
other than in the ordinary course of business, short-term borrowings
of the Offeror or the Bank.
(xix) Except as set forth in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no investigation, action, suit or proceeding is
pending or, to the knowledge of the Offeror, threatened, against or
affecting the Offeror or the Bank or any of their respective properties
before or by any court or any regulatory, administrative or governmental
official, commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding would have a
material adverse effect on the consummation of this Agreement or the
transactions contemplated herein or the financial condition, earnings,
business, prospects or results of operations of the Offeror and the Bank on
a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary Prospectus)
and is not so disclosed.
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(xx) There are no contracts or other documents required to be
filed as exhibits to the Registration Statement under the 1933 Act or the
1933 Act Regulations which have not been filed as exhibits or incorporated
by reference to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) that are not so summarized.
(xxi) The Offeror has not taken, directly or indirectly, any
action designed to result in or which has constituted or which might cause
or result in stabilization or manipulation of the price of any security of
the Offeror to facilitate the sale or resale of the Common Shares, and the
Offeror is not aware of any such action taken or to be taken by any
affiliate of the Offeror.
(xxii) The Offeror and the Bank own, or possess adequate rights
to use, all patents, copyrights, trademarks, service marks, trade names and
other rights necessary to conduct the businesses now conducted by them or
as described in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) and neither the Offeror nor the
Bank has received any notice of infringement or conflict with asserted
rights of others with respect to any patents, copyrights, trademarks,
service marks, trade names or other rights which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the financial condition, earnings,
business, prospects or results of operations of the Offeror and the Bank on
a consolidated basis, and the Offeror does not know of any basis for any
such infringement or conflict.
(xxiii) Except as adequately disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), no labor dispute involving the Offeror or the Bank exists or,
to the knowledge of the Offeror, is imminent which would reasonably be
expected to have a material adverse effect on the financial condition,
earnings, business, prospects or results of operations of the Offeror and
the Bank on a consolidated basis or which is required to be disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither the Offeror nor the Bank has received
notice of any existing or threatened labor dispute by the employees of any
of its principal suppliers, customers or contractors which might be
expected to have an adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations
of the Offeror and the Bank on a consolidated basis.
(xxiv) The Offeror and the Bank have timely and properly prepared
and filed all necessary federal, state, local and foreign tax returns which
are required to be filed and have paid all taxes shown as due thereon and
have paid all other taxes and assessments to the extent that the same shall
have become due, except such as are being contested in good faith or where
the failure to so timely and properly prepare and file would not have a
material adverse effect on the financial condition, earnings, business,
prospects or results of operations of the Offeror and
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the Bank on a consolidated basis. The Offeror has no knowledge of any tax
deficiency which has been or might be assessed against the Offeror or the
Bank which, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the financial condition, earnings,
business, prospects or results of operations of the Offeror and the Bank on
a consolidated basis.
(xxv) Each of the contracts, agreements and instruments
described or referred to in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and each contract, agreement and instrument filed as an exhibit
to the Registration Statement is in full force and effect and is the legal,
valid and binding agreement of the Offeror or the Bank, enforceable in
accordance with its terms, except as the enforcement thereof may be limited
by general principles of equity and by bankruptcy, moratorium,
reorganization, fraudulent transfer or other laws relating to or affecting
creditors, rights generally, except as such matters that would not have a
material adverse effect on the Offeror, the Bank or their financial
condition, earnings, business, prospects or results of operations. Except
as disclosed in the Prospectus (or such Preliminary Prospectus), to the
knowledge of the Offeror, no other party to any such agreement is (with or
without notice or lapse of time or both) in breach or default thereunder,
except as such matters that would not have a material adverse effect on the
Offeror, the Bank or their financial condition, earnings, business,
prospects or results of operations; provided however, that the foregoing
shall not apply to defaults by borrowers from the Bank.
(xxvi) No relationship, direct or indirect, exists between or
among the Offeror or the Bank, on the one hand, and the directors,
officers, trustees, shareholders, organizers, customers or suppliers of the
Offeror or the Bank, on the other hand, which is required to be described
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) which is not
adequately described therein.
(xxvii) No person has the right to request or require the Offeror
or the Bank to register any securities for offering and sale under the 1933
Act by reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Common Shares except as
adequately disclosed in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxviii) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there are no contractual encumbrances or restrictions or legal restrictions
on the ability of the Bank (A) to pay dividends or make any other
distributions on its capital stock or to pay any indebtedness owed to the
Offeror, (B) to make any loans or advances to, or investments in, the
Offeror or (C) to transfer any of its property or assets to the Offeror.
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(xxix) Neither the Offeror nor the Bank is an "investment
company" or a company "controlled" by an investment company as such terms
are defined in the Investment Company Act of 1940, as amended.
(xxx) Other than due diligence material distributed to the
Dealers, the Offeror has not distributed and will not distribute prior to
the Closing Date any prospectus in connection with the offering of the
Common Shares, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933 Act
and the 1933 Act Regulations and reviewed by the Dealers.
(b) Each Dealer, severally and not jointly, represents and warrants to
the Offeror that:
(i) It is a broker and dealer duly registered with the Commission
pursuant to the 1934 Act and no proceeding has been initiated to revoke its
registration, it is a member in good standing of the NASD, and it is duly
registered as a broker and dealer under the applicable statutes in each
state in which it proposes to offer or sell the Common Shares, where such
registration is required. It will maintain all necessary broker and dealer
registrations through the Closing Date.
(ii) Prior to the effective date of this Agreement, it and its
officers, directors, agents and employees (A) have not at any time, either
directly or indirectly, sold, offered for sale, solicited offers to
subscribe for or buy, or otherwise approached or negotiated the sale of any
Common Shares or any other interest in the Offeror, and (B) will not,
either directly or indirectly, sell, offer for sale, solicit offers to
subscribe for or buy, or otherwise approach or negotiate the sale of any
Common Shares or any other interest in the Offeror prior to the Sales
Termination Date, except as provided in this Agreement.
(iii) It will offer and sell the Common Shares only by means of the
Preliminary Prospectus, Prospectus and other material authorized by the
Offeror. It will not give any information or make any representation in
connection with the Offering which is not contained in the Preliminary
Prospectus, Prospectus or other material provided by persons authorized by
the Offeror. It will solicit purchasers of Common Shares only in the
jurisdictions in which it has been advised in a blue sky memorandum
prepared by counsel to the Managing Dealer (the "Blue Sky Memorandum") that
the solicitation can be made, and the solicitations will be made subject to
any conditions set forth by such counsel in the Blue Sky Memorandum.
(iv) This Agreement has been duly and validly authorized, executed
and delivered on the Dealer's behalf and constitutes the legal, valid and
binding agreement of the Dealer, enforceable against the Dealer in
accordance with its terms, except as the enforcement thereof may be limited
by general principles of equity and by bankruptcy, moratorium,
reorganization, fraudulent conveyance or
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other laws relating to or affecting creditors' rights generally and except
as any indemnification or contribution provisions thereof may be limited
under applicable securities laws or public policy.
(v) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) do not and will not
conflict with, constitute a breach or violation of, or constitute a default
under, with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter or bylaws of the Dealer, any
contract or instrument by which the Dealer is bound or any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Dealer. No authorization, approval, consent or order
of, or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is required
in connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, except such as may be required
by, and have been obtained under, the 1933 Act, state securities laws,
Interpretations or Rules of the NASD in connection with the offer and
distribution of the Common Shares by the Dealer.
(vi) Any statements in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) based upon and in conformity with information furnished to the
Offeror by the Dealer in writing for use in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) are correct and do not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. CERTAIN COVENANTS OF THE OFFEROR. The Offeror covenants with the
several Dealers as follows:
(a) The Offeror shall use its best efforts to cause the Registration
Statement and any amendments thereto, if not effective at the time of
execution of this Agreement, to become effective as promptly as possible.
If the Registration Statement has become or becomes effective pursuant to
Rule 430A and information has been omitted therefrom in reliance on Rule
430A, then the Offeror will prepare and file in accordance with Rule 430A
and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a
post-effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide evidence
satisfactory to the Managing Dealer of such timely filing.
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(b) The Offeror shall notify the Managing Dealer immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement and any 1934 Act
documents incorporated by reference therein;
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus, the Prospectus or
the 1934 Act documents incorporated therein by reference or for
additional information relating thereto; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Common Shares for offering or sale in
any jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offeror shall use its best
efforts to prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such order to be
withdrawn or lifted as soon as possible.
(c) The Offeror shall furnish to the Dealers, from time to time without
charge, as soon as available, as many copies as the Dealers may reasonably
request of (i) the registration statement as originally filed and of all
amendments thereto, in executed form, including exhibits, whether filed
before or after the Registration Statement becomes effective, (ii) all
exhibits and documents incorporated therein or filed therewith, (iii) all
consents and certificates of experts in executed form, (iv) each Preliminary
Prospectus and all amendments and supplements thereto, and (v) the
Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under
the 1933 Act, the Offeror shall comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the rules and regulations under the 1934 Act
so as to permit the completion of the distribution of the Common Shares as
contemplated herein and in the Prospectus. Except as required by applicable
law as evidenced by a written opinion of counsel relating thereto, the
Offeror shall not file any amendment to the registration statement as
originally filed or to the Registration Statement and shall not file any
amendment thereto or make any amendment or supplement to any Preliminary
Prospectus or to the Prospectus of which the Managing Dealer shall not
previously have been advised in writing and provided a copy a reasonable
time prior to the proposed filings thereof or to which the Managing Dealer
or counsel to the Managing Dealer shall reasonably object.
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If it is necessary, in the Managing Dealer's reasonable opinion or in the
reasonable written opinion of counsel to the Managing Dealer to amend or
supplement the Registration Statement or the Prospectus in connection with
the distribution of the Common Shares, the Offeror shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be,
by preparing and filing with the Commission and furnishing to the Managing
Dealer, such number of copies as the Managing Dealer reasonably may request
of an amendment or amendments of, or a supplement or supplements to, the
Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to the Managing Dealer and counsel to the
Managing Dealer). If any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus to correct an untrue
statement of fact or to include any fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if for any reason it is necessary at any time to amend or
supplement the Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Offeror shall, subject to the second sentence of this
subsection (d), forthwith amend or supplement the Prospectus by preparing
and filing with the Commission, and furnishing to the Managing Dealer, such
number of copies as the Managing Dealer may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the
Prospectus (in form and substance satisfactory to the Managing Dealer and
counsel to the Managing Dealer) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of fact or omit to state
any fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Offeror shall cooperate with the Managing Dealer and counsel to
the Managing Dealer in order to qualify the Common Shares for offering and
sale under the securities or blue sky laws of such jurisdictions as the
Managing Dealer may reasonably request and shall continue such
qualifications in effect so long as may be advisable for distribution of the
Common Shares; provided, however, that the Offeror shall not be required to
qualify to do business as a foreign corporation or file a general consent to
service of process in any jurisdiction in connection with the foregoing. The
Offeror shall file such statements and reports as may be required by the
laws of each jurisdiction in which the Common Shares have been qualified as
above. The Offeror will notify the Managing Dealer immediately of, and
confirm in writing, the suspension of qualification of the Common Shares or
threat thereof in any jurisdiction.
(f) The Offeror shall make generally available to its security holders
in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to the Dealers as soon as practicable, but in any event not later
than 16 months after the Effective Date, a consolidated earnings statement
of the Offeror conforming with the requirements of Section 11(a) of the 1933
Act and Rule 158.
(g) The Offeror shall use the proceeds from the sale of the Common
Shares to be sold hereunder in the manner specified in the Prospectus under
the caption "Use of Proceeds."
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(h) For five years from the Effective Date, the Offeror shall furnish
to the Managing Dealer copies of all reports and communications (financial
or otherwise) furnished by the Offeror to the holders of the Common Shares
as a class, copies of all reports and financial statements filed with or
furnished to the Commission (other than portions for which confidential
treatment has been obtained from the commission) or with any national
securities exchange.
(i) For a period of 180 days from the Effective Date, the Offeror shall
not, directly or indirectly, offer for sale, sell or agree to sell or
otherwise dispose of any Common Shares other than pursuant to this Agreement
and the Prospectus, any other beneficial interests in the assets of the
Offeror or any securities of the Offeror or the Bank that are substantially
similar to the Common Shares, including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible
into or exchangeable for or that represent the right to receive any such
beneficial interest or substantially similar securities, without the
Managing Dealer's prior written consent.
(j) The Offeror shall not, for a period of 180 days after the date
hereof, without the Managing Dealer's prior written consent, purchase,
redeem or call for redemption, or prepay or give notice of prepayment (or
announce any redemption or call for redemption, or any repayment or notice
of prepayment) of the Offeror' securities; provided however, that the
foregoing shall not prevent an employee from delivering the Offeror's
securities in payment of the exercise price of options issued under the
Offeror's 1998 Incentive Stock Option Plan, Outside Director Stock Option
Plan or the Restricted Non-Statutory Stock Option Plan or in payment of the
exercise price of warrants issued to certain of the Offeror's organizers.
(k) The Offeror shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might cause or
result in stabilization or manipulation of the price of any security of the
Offeror to facilitate the sale or resale of the Common Shares and the
Offeror is not aware of any such action taken or to be taken by any
affiliate of the Offeror.
(l) Prior to the Closing Date, the Offeror will not issue any press
release or other communication directly or indirectly or hold any press
conference with respect to the Offeror, the Bank or the Offering without the
Managing Dealer's prior written consent, which will not be unreasonably
withheld.
(m) The Offeror shall use its best efforts to become duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as
amended.
(n) The Offeror shall use its best efforts to cause the Bank to become
a Florida-state chartered commercial bank, validly existing and in good
standing under the laws of its jurisdiction of organization. The Bank will
have full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) and as currently being
conducted. The Bank will have full corporate power and authority to issue
all of its
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common securities to the Offeror. The Bank will be a member of the Federal
Reserve System. The deposit accounts of the Bank will be insured by the Bank
Insurance Fund administered by the FDIC up to the maximum amount provided by
law.
(o) The Offeror shall use its best efforts to cause the Bank to be duly
qualified to transact business as a foreign corporation and be in good
standing in each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate, have a
material adverse effect on the financial condition, earnings, business,
prospects or results of operations of the Offeror and the Bank on a
consolidated basis.
(p) The capital stock of the Bank shall conform to the description
thereof contained in the Prospectus or the financial information included
therein (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there are no outstanding securities convertible into or exchangeable for any
capital stock of the Bank and no restrictions upon the voting or transfer of
any capital stock of the Bank pursuant to the Bank's corporate charter or
bylaws or any agreement or other instrument to which the Offeror or the Bank
is a party or by which the Offeror or the Bank is bound.
(q) The Offeror shall cause the Bank to comply with all federal, state
and local statutes, regulations, ordinances and rules applicable to the
ownership and operation of its properties or the conduct of its business as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted except for such
matters as would not be expected to have a materially adverse effect
thereon.
4. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the Offering is consummated, the Offeror covenants and agrees that it will pay
or cause to be paid (directly or by reimbursement) all costs and expenses
incident to the performance of its obligations under this Agreement, including,
but not limited to:
(a) the preparation, printing, filing, delivery and shipping of
the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any
amendments or supplements thereto, and the printing, delivery and shipping
of this Agreement and any other placement documents (including, without
limitation, selected dealers agreements), the certificates for the Common
Shares, all preliminary and final Blue Sky Memoranda and any legal
investment surveys and any supplements thereto;
(b) all fees, expenses and disbursements of the Offeror's counsel and
accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Common Shares under the securities or blue sky laws of
such jurisdictions as the Managing Dealer may request, including all filing
fees and reasonable fees and
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disbursements of counsel to the Managing Dealer in connection therewith,
including, without limitation, in connection with the preparation of any
preliminary and final Blue Sky Memoranda and any legal investment surveys
and any supplements thereto;
(d) payment to the Managing Dealer of its documented out-of-pocket
expenses incurred in connection with the Offering, up to a maximum of
$50,000;
(e) all fees and expenses incurred in connection with filings made
with the NASD;
(f) the cost of furnishing to the Dealers copies of the initial
registration statements, any Preliminary Prospectus, the Registration
Statement and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel to any transfer agent or registrar; and
(h) all costs and expenses (including stock transfer taxes) incurred in
connection with the printing, issuance and delivery of the Common Shares to
purchasers solicited by the Dealers.
If the offer and sale of Common Shares contemplated by this Agreement
is not completed due to a default of this Agreement by the Offeror (including a
termination pursuant to Section 8(a), (b) or (c)), the Offeror will pay the
Managing Dealer its accountable out-of-pocket expenses in connection herewith or
in contemplation of the performance of the Managing Dealer's obligations
hereunder, including without limitation travel expenses, reasonable fees,
expenses and disbursements of counsel or other out-of-pocket expenses incurred
by the Managing Dealer in connection with any discussion of the Offering or the
contents of the Registration Statement, any investigation of the Offeror and the
Bank, or any preparation for the marketing, sale or delivery of the Common
Shares, in each case following presentation of reasonably detailed invoices
therefor.
5. CONDITIONS OF THE DEALERS' OBLIGATIONS. The obligations of each of
the several Dealers to use their best efforts to solicit purchasers for the
Common Shares are subject to the accuracy of and compliance with the
representations and warranties and agreements of the Offeror herein as of the
date hereof and as of each applicable closing date, to the accuracy of the
written statements of the Offeror made pursuant to the provisions hereof, to the
performance by the Offeror of its covenants and obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not
later than 10:00 a.m., Miami time, on the first Business Day following the
time of execution of this Agreement, or at such later time and date as the
Managing Dealer may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in accordance
with Rule 424(b) and Rule 430A under the 1933 Act and Section 3(a) hereof.
No stop order suspending the effectiveness of the Registration Statement or
any amendment or supplement thereto shall have been issued under the 1933
Act or any
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applicable state securities laws and no proceedings for that purpose shall
have been instituted or shall be pending, or, to the knowledge of the
Offeror or the Managing Dealer, shall be contemplated by the Commission or
any state authority. Any request on the part of the Commission or any state
authority for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been disclosed to the
Managing Dealer and complied with to the Managing Dealer's reasonable
satisfaction and to the reasonable satisfaction of counsel to the Managing
Dealer.
(b) The Managing Dealer shall not have advised the Offeror at or before
the applicable closing date that the Registration Statement or any
post-effective amendment thereto, or the Prospectus or any amendment or
supplement thereto, contains an untrue statement of fact which, in the
Managing Dealer's opinion, is material or omits to state any fact which, in
the Managing Dealer's opinion, is material and is required to be stated
therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in light of the
circumstances under which they were made) not misleading or, if so advised,
the Offeror shall have cured such disclosure to the satisfaction of the
Managing Dealer.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement and the Common Shares,
and the authorization and form of the Registration Statement and Prospectus,
other than financial statements and other financial data, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all respects to counsel to the
Managing Dealer, and the Offeror and the Bank shall have furnished to such
counsel all documents and information relating thereto that they may
reasonably request to enable them to pass upon such matters.
(d) Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A., counsel to the
Offeror, shall have furnished to the Managing Dealer their opinion, dated
the Effective Date, in form and substance reasonably satisfactory to counsel
to the Managing Dealer, to the effect that:
(i) The Offeror has been duly incorporated and is validly existing
and in good standing under the laws of the State of Florida. The Offeror
has full corporate power and authority to own or lease its properties
and to conduct its business as such business is described in the
Prospectus and is currently conducted.
(ii) The capital stock of the Offeror and the Bank conform in all
material respects to the descriptions thereof contained in the
Prospectus. The capital stock of the Offeror authorized and issued as of
December 31, 1998 is as set forth under the caption "Capitalization" in
the Prospectus, has been duly authorized and validly issued, and is
fully paid and nonassessable. The form of certificates to evidence the
Common Shares has been approved by or on behalf of the Offeror and is in
due and proper form and complies with all applicable requirements. There
are no outstanding rights, options or warrants to purchase
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from the Offeror, no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements to issue,
any shares of capital stock of the Offeror or the Bank, except as
described in the Prospectus.
(iii) The Offeror has all requisite corporate power and authority to
issue, sell and deliver the Common Shares in accordance with and upon
the terms and conditions set forth in this Agreement, the Registration
Statement and the Prospectus. All corporate action required to be taken
by the Offeror for the authorization, issuance, sale and delivery of the
Common Shares in accordance with such terms and conditions has been
validly and sufficiently taken. All of the Common Shares have been duly
and validly authorized and, when sold and delivered in accordance with
this Agreement, will be duly and validly issued, fully paid and
nonassessable, and will conform in all material respects to the
description thereof in the Registration Statement and the Prospectus.
There are no preemptive or other rights to subscribe for or to purchase,
and other than as disclosed in the Prospectus no restrictions upon the
voting or transfer of, any shares of capital stock or equity securities
of the Offeror or the Bank pursuant to the corporate charter, bylaws or
other governing documents of the Offeror or the Bank, or, to such
counsel's knowledge, any agreement or other instrument to which either
Offeror or the Bank is a party or by which either Offeror or the Bank
may be bound.
(iv) The Offeror has all requisite corporate power to enter into
and perform its obligations under this Agreement, and this Agreement has
been duly and validly authorized, executed and delivered by the Offeror
and constitutes the legal, valid and binding obligations of the Offeror
enforceable in accordance with its terms, except as the enforcement
hereof or thereof may be limited by general principles of equity and by
bankruptcy, insolvency, reorganization, receivership, fraudulent
transfer, moratorium or other laws relating to or affecting creditors,
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and public policy
and certain remedies may not be available in the case of a non-material
breach.
(v) To such counsel's knowledge, neither the Offeror nor the
Bank is in breach or violation of, or default under, with or without
notice or lapse of time or both, its corporate charter, bylaws or other
governing document. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not and will not conflict with, result in the creation or
imposition of any lien, claim, charge, encumbrance or restriction upon
any property or assets of the Offeror or the Bank or the Common Shares
pursuant to, or constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the charter, bylaws or other
governing document of the Offeror or the Bank, or to such counsel's
knowledge, any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license or any other
agreement or instrument to which either the Offeror or the Bank is a
party or by which any of them or any of their respective properties may
be bound
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or any order, decree, judgment, franchise, license, Permit, rule or
regulation of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Offeror or the Bank or any of their respective
properties. No authorization, approval, consent or order of, or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required under
Florida law in connection with the transactions contemplated by this
Agreement in connection with the sale of the Common Shares by the
Dealers.
(vi) To such counsel's knowledge, holders of securities of the
Offeror either do not have any right that, if exercised, would require
the Offeror to cause such securities to be included in the Registration
Statement or have waived such right. To such counsel's knowledge,
neither the Offeror nor the Bank is a party to any agreement or other
instrument which grants rights for or relating to the registration of
any securities of the Offeror.
(vii) Except as set forth in the Registration Statement and the
Prospectus, (A) no action, suit or proceeding at law or in equity is
pending or threatened in writing to which the Offeror or the Bank is or
may be a party, and (B) no action, suit or proceeding is pending or
threatened in writing against or affecting the Offeror or the Bank or
any of their properties, before or by any court or governmental
official, commission, board or other administrative agency, authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or
finding would have a material adverse effect on the consummation of this
Agreement or the solicitation and sale of the Common Shares as
contemplated herein or the financial condition, earnings, business, or
results of operations of the Offeror and the Bank on a consolidated
basis or which is required to be disclosed in the Registration Statement
or the Prospectus and is not so disclosed.
(viii) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, except such as may be
required by, and have been obtained under, the 1933 Act, state
securities laws, or Interpretations or Rules of the NASD in connection
with the sale and distribution of the Common Shares by the Dealers.
(ix) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated therein
by reference (other than the financial statements or other financial
and/or statistical data included therein or omitted therefrom and Dealer
Information, as to which such counsel need express no opinion) comply as
to form with the requirements of the 1933 Act and the 1933 Act
Regulations as of their respective dates of effectiveness.
(x) There are no contracts, agreements, leases or other
documents of a character required to be disclosed in the Registration
Statement or Prospectus or
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to be filed as exhibits to the Registration Statement that are not so
disclosed or filed.
(xi) The statements under the captions "Capitalization,"
"Description of Capital Stock," and "Supervision and Regulation" in the
Prospectus, insofar as such statements constitute a summary of legal and
regulatory matters, documents, instruments or proceedings referred to
therein are accurate descriptions of the matters summarized therein and
fairly present in all material respects the information called for with
respect to such legal and regulatory matters, documents, instruments and
proceedings, other than financial and statistical data as to which said
counsel expresses no opinion or belief.
(xii) Such counsel has been advised by the staff of the Commission
that the Registration Statement has become effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been
made within the time period required by Rule 424(b); to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for a stop
order are pending or threatened by the Commission.
(xiii) Except as set forth in the Prospectus, to such counsel's
knowledge, there are no contractual encumbrances or restrictions, or
legal restrictions (excluding any encumbrances or restrictions of
general application to state banks contained in laws, rules and
regulations of applicable regulatory authorities) on the ability of the
Bank (A) to pay dividends or make any other distributions on its capital
stock or to pay indebtedness owed to the Offeror, (B) to make any loans
or advances to, or investments in, the Offeror or (C) to transfer any of
its property or assets to the Offeror.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offeror including, without limitation, certificates as to
the identity of any and all contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or
other agreements or instruments, and all permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes
of paragraphs (v), (x) and (xiii) hereof and certificates of public
officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offeror
and with their independent public accountants and with the Managing Dealer
and counsel to the Managing Dealer, at which conferences such counsel made
inquiries of such officers, representatives and accountants and discussed in
detail the contents of the Registration Statement and Prospectus and the
documents incorporated therein by reference and such counsel has no reason
to believe (A) that the Registration Statement or any amendment thereto
(except for the financial statements and related schedules and financial and
statistical data included therein or omitted therefrom or Dealer
Information, as to which such counsel need express no opinion), at the time
the Registration Statement or any such amendment became
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effective, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto or the documents contained therein by reference (except
for the financial statements and related schedules and financial and
statistical data included therein or omitted therefrom or Dealer
Information, as to which such counsel need express no opinion), at the time
the Registration Statement became effective (or, if the term "Prospectus"
refers to the prospectus first filed pursuant to Rule 424(b) of the 1933 Act
Regulations, at the time the Prospectus was issued), at the time any such
amended or supplemented Prospectus was issued, and at the applicable closing
date, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, or (C) that there is any amendment
to the Registration Statement required to be filed that has not already been
filed.
(e) Xxxxx Xxxx, counsel to the Managing Dealer, shall have furnished to
the Managing Dealer their opinion, dated the applicable closing date, with
respect to the sufficiency of all corporate procedures and other legal
matters relating to this Agreement, the validity of the Common Shares, the
Registration Statement, the Prospectus and such other related matters as the
Managing Dealer reasonably may request and there shall have been furnished
to such counsel such documents and other information as they may request to
enable them to pass on such matters. In giving such opinion, Xxxxx Xxxx may
rely as to matters of fact upon statements and certifications of officers of
the Offeror and of other appropriate persons.
(f) On the date of this Agreement and on each applicable closing date,
the Dealers shall have received from Morrison, Brown, Argiz & Co. a letter,
dated the date of this Agreement and the applicable closing date,
respectively, in form and substance satisfactory to the Managing Dealer,
confirming that they are independent public accountants with respect to the
Offeror, within the meaning of the 1933 Act and the 1933 Act Regulations,
and stating in effect that:
(i) In their opinion, the financial statements of the Offeror
audited by them and included in the Registration Statement comply as
to form with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Offeror
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, which
procedures do not constitute an audit in accordance with U.S. generally
accepted auditing standards, nothing came to their attention that caused
them to believe that, if applicable, the unaudited interim financial
statements of the Offeror included in the Registration Statement do not
comply as to form with the applicable accounting requirements of the
1933 Act and 1933 Act Regulations
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or are not in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent, except as noted
in the Registration Statement, with the basis for the audited financial
statements of the Offeror included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
and other information referred to below, a reading of the latest
available unaudited condensed financial statements of the Offeror,
inspection of the minute books of the Offeror since the date of the
latest audited financial statements of the Offeror included in the
Registration Statement, inquiries of officials of the Offeror
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
capital stock, allowance for loan losses, or net loans
receivable of the Offeror, any increase in the long-term debt,
short term borrowings, obligations under capital leases or real
estate owned of the Offeror, any decreases in total assets or
shareholders equity of the Offeror, or any changes, decreases or
increases in other items specified by the Dealers, in each case
as compared with amounts shown in the latest unaudited interim
statement of financial condition of the Offeror included in the
Registration Statement except in each case for changes,
increases or decreases which the Registration Statement
specifically discloses, have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest unaudited
interim financial statements included in the Registration
Statement to the specified date referred to in clause (iii)(A),
there were any decreases in the interest income, net interest
income, other operating income or net income of the Offeror or
in the per share amount of net income of the Offeror, any
increase in other operating expense of the Offeror, or any
changes, decreases or increases in any other items specified by
the Dealers, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Dealers, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are described in
such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an audit in accordance with U.S.
generally accepted auditing standards, with respect to
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certain amounts, percentages and financial information specified by the
Dealers which are derived from the general accounting records and
financial statements of the Offeror which appear in the Registration
Statement specified by the Dealers in the Registration Statement, and
have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
financial statements of the Offeror have found them to be in agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified
in clause (iv) above, it shall be a further condition to the obligations of
the Dealers that the Dealers shall have determined, after discussions with
officers of the Offeror responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in
such letters do not (x) reflect an adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest
unaudited statement of financial condition of the Offeror included in the
Registration Statement, (y) reflect an adverse change in the items specified
in clause (iii)(B) above as compared with the corresponding periods
specified by the Managing Dealer, or (z) reflect a material change in items
specified in clause (iv) above from the amounts shown in the Preliminary
Prospectus distributed by the Dealers in connection with the Offering or
from the amounts shown in the Prospectus.
(g) On the Initial Closing Date, any Subsequent Closing Date and the
Closing Date, the Managing Dealer shall have received certificates of the
chief executive officer and the chief financial and accounting officer of
the Offeror, which certificates shall be deemed to be made on behalf of the
Offeror dated as of such closing date, evidencing satisfaction of the
conditions of Section 5(a) and stating that (i) the representations and
warranties of the Offeror set forth in Section 2(a) hereof are accurate as
of such closing date and that the Offeror has complied in all material
respects with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such closing date; (ii) since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse change
in the financial condition, earnings, business, prospects or results of
operations of the Offeror and the Bank on a consolidated basis; (iii) since
such dates there has not been any transaction entered into by the Offeror or
the Bank other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the
Prospectus as amended or supplemented and nothing has come to their
attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto as of
their respective effective or issue dates, contained, and the Prospectus as
amended or supplemented at such closing date, contains any untrue statement
of a material fact, or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
certificate of the officers of the Offeror shall further state that no stop
order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
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(h) The NASD, upon review of the terms of the public offering of the
Common Shares, shall not have objected to the Dealers' participation in such
offering.
(i) Prior to the Initial Closing Date, the Offeror shall have furnished
to the Managing Dealer and counsel to the Managing Dealer all such other
documents, certificates and opinions as they have reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Managing Dealer. Any certificate signed by an
officer of the Offeror and delivered to the Managing Dealer pursuant hereto
shall also be deemed to be a representation and warranty of the Offeror to the
Dealers as to the statements made therein. The Offeror shall furnish to the
Managing Dealer conformed copies of such opinions, certificates, letters and
other documents as the Managing Dealer reasonably may request.
If any of the conditions referred to in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the several Dealers' obligations hereunder may be terminated by the Managing
Dealer on notice to the Offeror at, or at any time before, the Closing Date. Any
such termination shall be without liability of the Dealers to the Offeror or the
Bank.
6. CONDITIONS OF THE OFFEROR'S OBLIGATIONS. The obligations of the Offeror
hereunder are subject to the accuracy of and compliance with the representations
and warranties and agreements of the Managing Dealer herein as of the date
hereof and as of the applicable closing date and to the performance by the
Managing Dealer of its obligations hereunder.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offeror agrees to indemnify and hold harmless each of the
Dealers, each of their directors, officers and agents, and each person, if
any, who controls any Dealer within the meaning of the 1933 Act and the 1934
Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees
and expenses), joint or several, arising out of or based upon (i) any untrue
statement or alleged untrue statement of fact made by the Offeror or the
Bank contained in the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, (ii) any untrue
statement or alleged untrue statement of fact made by the Offeror or the
Bank upon any blue sky application or other document executed by the Offeror
or the Bank specifically for that purpose or based upon written information
furnished by the Offeror or the Bank filed in any state or other
jurisdiction in order to qualify any of the Common Shares under the
securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any omission or
alleged omission to state a material fact in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application required to be stated therein or
necessary to make the statements therein not misleading, and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and attorney fees), arising out of or based upon any
untrue statement or
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alleged untrue statement of a material fact contained in any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, (iv) any breach of any representation or warranty
made by the Offeror in Section 2(a) hereof, (v) any sales efforts made by
the Offeror to sell its securities that are not made through the Dealers
pursuant to this Agreement, or (vi) the enforcement of this indemnification
provision or the contribution provisions of Section 7(d); and shall
reimburse each such indemnified party for any reasonable legal or other
expenses as incurred, but in no event less frequently than 30 days after
each invoice is submitted, incurred by them in connection with investigating
or defending against any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later
be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Offeror shall not be liable in any
such case to the extent, but only to the extent, that any such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
untrue statement or omission or allegation thereof that has been made
therein or omitted therefrom in reliance upon and in conformity the Dealer
Information; provided further, that the indemnification contained in this
paragraph with respect to any Preliminary Prospectus shall not inure to the
benefit of any Dealer (or of any person controlling such Dealer) to the
extent any such losses, claims, damages, liabilities or expenses results
from the fact that such Dealer sold Common Shares to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale,
a copy of the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to such Dealer in sufficient
time to distribute same with or prior to the written confirmation of the
sale involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to give or
send such person such document. The foregoing indemnity agreement is in
addition to any liability the Offeror or the Bank may otherwise have to any
such indemnified party.
(b) Each Dealer severally agrees to indemnify and hold harmless the
Offeror, the Bank, each of their directors, each of their officers who
signed the Registration Statement and each person, if any, who controls the
Offeror or the Bank within the meaning of the 1933 Act, to the same extent
as required by the foregoing indemnity from the Offeror to the Dealers, but
only with respect to the Dealer Information or information furnished by a
Dealer in a Blue Sky Application and only for failure to deliver a final
prospectus to investors in accordance with the 1933 Act. The foregoing
indemnity agreement is in addition to any liability which any such Dealer
may otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect
of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the
indemnifying party in writing, and the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory
to the indemnified party and the payment of all expenses; provided, however,
that the failure so to notify the indemnifying party shall not relieve it
from any liability which it
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may have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to the
extent prejudiced thereby. Any indemnified party or any such controlling
person shall have the right to employ separate counsel in any such action
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or such
controlling person unless (i) the employment thereof as separate counsel and
the payment of such counsel's fees has been specifically authorized by the
indemnifying party in writing, (ii) the indemnifying party has failed to
assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including
any impleaded parties) include both such indemnified party or such
controlling person and the indemnifying party and such indemnified party or
such controlling person shall have been advised in writing by such counsel
that the representation of both parties by the same counsel would be
inappropriate due to the actual or potential differing interests between
them (in which case, if such indemnified party or controlling person
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party
shall not be required to assume the defense of such action on behalf of such
indemnified party or such controlling person) it being understood, however,
that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys at any time and for all such indemnified party and
controlling persons, which firm shall be designated in writing by the
indemnified party and shall be reasonably acceptable to the indemnifying
party. Each indemnified party and each controlling person, as a condition of
such indemnity, shall use reasonable best efforts to cooperate with the
indemnifying party in the defense of any such action or claim. The
indemnifying party shall not be liable for any settlement of any such action
effected without its prior written consent, but if there be a final judgment
for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within
the meaning of the 1933 Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes a
release of each such indemnified party reasonably satisfactory to each such
indemnified party and each such controlling person from all liability
arising out of such claim, action, suit or proceeding or unless the
indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law,
such settlement, compromise or consent shall not alter the right of any
indemnified party or controlling person to indemnification or contribution
as provided in this Agreement.
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(d) If the indemnification provided for in this Section 7 is legally
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offeror and the
Bank on the one hand and the Dealers on the other from the offering of the
Common Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offeror and the Bank on the one hand and the Dealers
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Offeror and the Bank on the one hand and the Dealers on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Common Shares (before deducting expenses) received by the
Offeror bear to the total underwriting discounts, commissions and
compensation received by the Dealers, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Offeror and
the Bank on the one hand and of the Dealers on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of fact or the omission or alleged omission to state a fact
relates to information supplied by the Offeror or by the Dealers and the
parties, relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Offeror and
each of the Dealers agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in the first sentence of this paragraph
(d) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), a Dealer shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Common Shares sold by such Dealer and distributed to the
public were offered to the public exceeds the amount of any damages that
such Dealer has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls a Dealer
within the meaning of the 1933 Act shall have the same rights to
contribution as the Dealers, and each person who controls the Offeror within
the meaning of the 1933 Act and the 1934 Act, each officer of the Offeror
who shall have signed the Registration Statement and each director of the
Offeror shall have the same rights to contribution as the Offeror subject in
each case to the preceding sentence. The obligations of the Offeror under
this paragraph (d) shall be in addition to any liability which the Offeror
may otherwise have
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and the obligations of the Dealers under this paragraph (d) shall be in
addition to any liability that the Dealers may otherwise have.
(e) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Offeror set forth in this
Agreement shall remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of the Dealers or any person
controlling a Dealer or by or on behalf of the Offeror, or such directors or
officers (or any person controlling the Offeror), (ii) any sale of any
Common Shares and payment of commissions thereon hereunder and (iii) any
termination of this Agreement. A successor of a Dealer or of the Offeror,
such directors or officers (or of any person controlling a Dealer or the
Offeror) shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 7.
8. TERMINATION. The Managing Dealer shall have the right to terminate
this Agreement at any time at or prior to the Closing Date without liability on
the part of the Dealers to the Offeror, if:
(a) the Offeror has failed, refused, or been unable to perform any
agreement on its part to be performed under this Agreement, or any of the
conditions referred to in Section 5 shall not have been fulfilled, when and
as required by this Agreement;
(b) the Offeror or the Bank shall have sustained any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree which in the judgment of the
Managing Dealer impairs in any material respect the investment quality of
the Common Shares;
(c) there has been since the respective dates as of which information is
given in the Registration Statement or the Prospectus, any material adverse
change in, or any development which is likely to have a material adverse
effect on, the financial condition, earnings, business, prospects or results
of operations of the Offeror and the Bank on a consolidated basis, whether
or not arising in the ordinary course of business;
(d) there has occurred any outbreak of hostilities or other calamity or
crisis or change in general economic, political or financial conditions, or
internal conditions, the effect of which on the financial markets of the
United States is such as to make it, in the Managing Dealer's reasonable
judgment, impracticable to market the Common Shares or enforce contracts for
the sale of the Common Shares;
(e) trading generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority;
(f) a banking moratorium shall have been declared by either federal or
Florida authorities;
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(g) any action shall have been taken by any government in respect of
its monetary affairs which, in the Managing Dealer's reasonable judgment,
has an adverse effect on the United States securities markets; or
(h) the Offeror or the Bank receives written notice that the Bank will
not be granted the necessary approvals from the FDBF, the FDIC or FRBA, will
not be granted any necessary Permit or any necessary Permit will be revoked.
If this Agreement shall be terminated pursuant to this Section 8, the
Offeror shall not then be under any liability to the Dealers except as provided
in Sections 4 and 7 hereof.
9. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is not
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Offeror shall immediately notify the
Managing Dealer when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at 11:00 a.m. Miami time,
on the first full Business Day following the day on which this Agreement is
executed. Until such time as this Agreement shall have become effective, it may
be terminated by the Offeror, by notifying the Managing Dealer, or by the
Managing Dealer, by notifying the Offeror, except that the provisions of
Sections 4 and 7 shall at all times be effective.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Offeror and its officers and directors set forth in or made pursuant to this
Agreement and the agreements of the Dealers contained in Section 7 hereof shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Offeror or controlling persons of the Offeror, or by
or on behalf of the Dealers or controlling persons of the Dealers or any
termination or cancellation of this Agreement and shall survive sales of and
commission payments on the Common Shares.
11. NOTICES. Except as otherwise provided in this Agreement, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to the Offeror shall be sent to 000
Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, Fax (000) 000-0000, Attention: Mr. Xxxx
Xxxxxxx (with a copy to Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A., One
Biscayne Tower, Two Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Fax
(000) 000-0000, Attention: Xxxxxxx X. Xxxxxxxx, Esq.); and notices to the
Dealers shall be sent c/o Coast Partners Securities, Inc., 000 Xxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Fax (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxx (with a copy to Xxxxx Xxxx, 000 Xxxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000, Fax (000) 000-0000, Attention:
Xxxxxx X. Xxxxxxxxx, Esq.).
12. PARTIES. The Agreement herein set forth is made solely for the
benefit of the Dealers and the Offeror and, to the extent expressed, directors,
and officers of the Offeror, any person controlling the Offeror or the Dealers,
and their respective successors and assigns. No
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other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
his status as such purchaser, from the Dealers of the Common Shares.
13. LIABILITY OF MANAGING DEALER. The Managing Dealer shall be under no
obligation to the Offeror or any other party hereto for any act or omission of
any other Dealer, and shall not be liable hereunder except for obligations
expressly assumed hereunder.
14. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without giving effect to the choice of law or conflicts of
law principles thereof.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
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If the foregoing is in accordance with the Managing Dealer's
understanding of our agreement, please sign and return to us a counterpart
hereof, whereupon this shall become a binding agreement between the Offeror and
the Managing Dealer in accordance with its terms.
Very truly yours,
COASTAL COMMUNITY GROUP, INC.
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
CONFIRMED AND ACCEPTED,
as of ________________________, 1999.
COAST PARTNERS SECURITIES, INC.
Acting on behalf of itself and the several
Dealers named in Schedule A
By
--------------------------------------
Name
------------------------------------
Title
-----------------------------------
36
SCHEDULE A
LIST OF DEALERS
A-1
37
APPENDIX A
COASTAL COMMUNITY GROUP, INC.
SUBSCRIPTION AGREEMENT
The undersigned hereby subscribers for shares of common stock, $.01 par
value, of Coastal Community Group, Inc. ("Coastal"), at a price of $10.00 per
share, with a minimum investment of $2,500 (250 shares) and a maximum investment
of $500,000 (50,000 shares), and encloses full payment herewith in the amount of
$ . This Subscription Agreement is irrevocable until the termination of the
offering of the common stock, unless otherwise provided by applicable law, and
subject to all the terms and conditions contained in the final prospectus of
Coastal (the "Prospectus").
PLEASE MAKE CHECKS PAYABLE TO "SUN TRUST BANK, MIAMI, N.A. AS ESCROW
AGENT - COASTAL COMMUNITY GROUP, INC."
The undersigned represents and warrants to Coastal as follows:
1. The undersigned acknowledges that he has received and reviewed the
Prospectus.
2. The undersigned recognizes that Coastal has no financial and operating
history and that its stock as an investment involves risks as set forth in the
Prospectus, and hereby confirms that the undersigned understands such risks.
3. The undersigned is aware that (i) this subscription may be rejected in
whole or in part by Coastal, in its sole discretion, and (ii) in any event the
subscription will be returned in full to the undersigned (with interest as
described in the Prospectus) if subscriptions for at least 900,000 shares (as
specified in the Prospectus) are not received prior to termination of the
offering, if Coastal does not receive the required banking regulatory approval
(as specified in the Prospectus), or if Coastal for any reason terminates this
offering.
4. If the undersigned is an individual, the undersigned is a citizen of the
United States and over 21 years of age. If the undersigned is a trust, the
trustee and each beneficiary are citizens of the United States. If the
undersigned is a partnership, each partner is a citizen of the United States and
over 21 years of age. If the undersigned is a corporation, it is authorized and
otherwise duly qualified to hold stock in a bank holding company.
5. If the undersigned is a corporation or a partnership, it has all right,
power and authority to execute and deliver this Subscription Agreement on its
behalf, and this Subscription Agreement is a valid and binding agreement of such
corporation or partnership. If the undersigned is a trustee of a trust, the
trust is a valid and enforceable trust and the undersigned has, in such
capacity, all right, power and authority to execute and deliver this
Subscription Agreement. If the undersigned is the executor, administrator or
personal representative of an estate, the undersigned, in such capacity, has all
right, power and authority to executed and deliver this Subscription Agreement.
IN ORDER TO INVEST, ALL ITEMS ON THIS SUBSCRIPTION AGREEMENT MUST BE COMPLETED.
INVESTORS WITH QUESTIONS REGARDING THE COMPLETION OF THIS AGREEMENT SHOULD CALL
THEIR BROKER-DEALER. ANY MISSING INFORMATION OR SIGNATURES MAY DELAY PROCESSING
OF THIS SUBSCRIPTION.
Name of Subscriber(s) (indicate name of trust, partnership or corporation, if
applicable). Give both names if jointly owned. Please print the exact name you
want on the account.
Last Name(s) First Name(s) Initial(s) Home Phone / Fax
Business Phone / Fax
Social Security or Tax Identification Number(s). Give both if jointly owned.
SSN TIN
Mailing Address. Give both if jointly owned.
00
Xxxxxx Xxxx Xxxxx
Zip Code
Indicate Type of Ownership (check one).
[_] Individual (one signature) [_] Tenants in Common (all sign) [_] Corporation*
(two signatures)
[_] Joint Tenants (two signatures) [_] Trust (all Trustees sign; please provide name
names of trustees & beneficiaries) date of trust &
[_] Community Property (one [_] Partnership*
signature) (explain) [_] Other
*Please supply copy of document authorizing signatory
Signature Signature
FOR BROKER-DEALER COMPLETION
Firm
NASD Member Who Solicited This Purchase Signature of Registered
Representative
Registered Representative
Branch Office Address
Telephone No. Fax No. DTC No.
ACCEPTED: Coastal Community Group, Inc.
By
Xxxx X. Xxxxxxx, President and CEO
Date: , 1999
INSTRUCTIONS FOR SUBSCRIPTION AGREEMENT
A. SUBSCRIBERS
1. All Subscribers. Please read the Subscription Agreement and these
instructions carefully. The completed and signed Subscription Agreement,
together with a check in the full amount of the subscription payable to "Sun
Trust Bank, Miami, N.A. as Escrow Agent - Coastal Community Group, Inc.," should
be delivered to the subscriber's broker.
2. Individual Subscribers. If the subscriber is an individual, he or she must
complete and sign the Subscription Agreement.
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3. Joint Subscribers. In the case of joint ownership, including a husband and
wife, both persons must complete and sign the Subscription Agreement.
4. Trust, Corporate, Partnership or Other Fiduciary Subscribers. If the
subscriber is a trust, corporation, partnership or other fiduciary, such
subscriber must complete and sign the Subscription Agreement. In the case of a
trust, all trustee(s) must sign the Subscription Agreement. In the case of a
corporation, two officers must sign. If the subscriber is a trust, please supply
the name and date of the trust, the names of all trustees and the names of all
beneficiaries. If the subscriber is a corporation or partnership, please supply
a copy of the document authorizing the signatories.
B. BROKERS
1. Complete the broker's information appearing on the Subscription Agreement and
review the information provided by the subscriber to ensure that the subscriber
has properly completed and signed the Subscription Agreement. Also ensure that
the subscriber's check is payable to "Sun Trust Bank, Miami, N.A. as Escrow
Agent - Coastal Community Group, Inc."
2. Immediately forward a copy of the complete Subscription Agreement, together
with the original subscriber's check in the full amount of the subscription, to:
Sun Trust Bank, Miami, N.A.
Commercial Trust Department
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Ary X. Xxxxxxx, V.P.
phone (000) 000-0000 fax (000) 000-0000
3. Immediately forward a copy of the complete Subscription Agreement, together
with a copy of the subscriber's check, to:
Coast Partners Securities, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
phone (000) 000-0000 fax (000) 000-0000
4. Immediately forward the original Subscription Agreement, together with a copy
of the subscriber's check, to:
Coastal Community Group
x/x Xxxxxxx, Xxxxxxx, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
One Biscayne Tower
Two South Biscayne Blvd., Suite 3400
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
phone (000) 000-0000 fax (000) 000-0000
5. You should retain a copy for your records.
