Exhibit 10.1
FLORIDA BANKS CAPITAL TRUST II
$ 4,000,000
Floating Rate TRUPS(R)
Fully and Unconditionally Guaranteed as to Distributions
and Other Payments by
FLORIDA BANKS, INC.
PLACEMENT AGREEMENT
New York, New York
March 26, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Florida Banks, Inc., a financial holding company incorporated in Florida
(the "Company") and Florida Banks Capital Trust II, a Delaware statutory
business trust (the "Trust"), propose, subject to the terms and conditions
stated herein, to issue and sell 4,000 of Floating Rate TRUPS(R) of the Trust,
having a stated liquidation amount of $1,000 per capital security and bearing a
variable distribution rate per annum, reset semi-annually, equal to LIBOR (as
defined in the Indenture (as defined below)) plus 3.70% provided, that the
applicable interest rate may not exceed 11.00% through the interest payment date
in April, 2007 (the "Floating Rate") (the "Capital Securities"). Xxxxxxx Xxxxx
Xxxxxx Inc. is acting as the exclusive agent of the Company and the Trust in
connection with the offering of the Capital Securities.
The Capital Securities will be fully and unconditionally guaranteed on a
subordinated basis by the Company with respect to distributions and amounts
payable upon liquidation, redemption or repayment (the "Guarantee") pursuant to
the Guarantee Agreement (the "Guarantee Agreement"), to be dated as of the
Closing Date specified in Section 3 hereof, and executed and delivered by the
Company and Wilmington Trust Company, as trustee (the "Guarantee Trustee"), for
the benefit of the holders from time to time of the Capital Securities. The
entire proceeds from the sale of the Capital Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), and will be used by the Trust to purchase
$ 4,124,000 in principal amount of the Floating Rate Junior Subordinated Debt
Securities due 2032 of the Company (the "Subordinated Debt Securities"). The
Capital Securities and the Common Securities of the Trust will be issued
pursuant to the Amended and Restated Declaration of Trust (the "Declaration"),
to be dated as of the Closing Date among the Company, as sponsor, the
Administrator(s) named therein (the 2 "Administrators"), Wilmington Trust
Company, a Delaware corporation (the "Delaware Trustee"), Wilmington Trust
Company (the "Institutional Trustee"), and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Subordinated Debt Securities will be issued pursuant to an Indenture, to be
dated as of the Closing Date (the "Indenture"), between the Company and
Wilmington Trust Company, as trustee (the "Indenture Trustee").
The Capital Securities, the Common Securities and the Subordinated Debt
Securities are collectively referred to herein as the "Securities." This
Agreement, the Indenture, the Declaration, the Guarantee Agreement, the Capital
Securities Subscription Agreement (as defined below) and the Securities are
referred to collectively as the "Operative Documents." Capitalized terms used
herein without definition have the respective meanings specified in the
Declaration.
The Securities have not been and will not be registered under the
Securities Act of 1933, as amended (the "Securities Act").
1. Representations and Warranties. The Company and the Trust jointly and
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severally represent and warrant to, and agree with you and the Purchaser (as
defined in Section 2 hereof) as set forth below in this Section 1 (provided,
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that, none of the following representations or warranties apply or relate to any
acts or omissions by you).
(a) Neither the Company nor the Trust, nor any of their Affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation
D")), nor any person acting on its or their behalf has, directly or indirectly,
made offers or sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of any of the Securities
under the Securities Act.
(b) Neither the Company nor the Trust, nor any of their Affiliates,
nor any person acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of any of the Securities.
(c) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(d) Neither the Company nor the Trust, nor any of their Affiliates,
nor any person acting on its or their behalf, has engaged or will engage in any
directed selling efforts with respect to the Securities within the meaning of
Regulation S.
(e) Neither the Company nor the Trust is, nor after giving effect to
the offering and sale of the Securities will be, an "investment company" or an
entity "controlled" by an "investment company," required to be registered under
the Investment Company Act of 1940, as amended (the "Investment Company Act").
(f) Neither the Company nor the Trust has paid or agreed to pay to any
person any compensation for soliciting another to purchase any of the Securities
(except as contemplated by this Agreement).
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(g) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
3801, et seq. (the "Business Trust Act") with the power and authority to own
property and to conduct the business it transacts and proposes to transact and
to enter into and perform its obligations under the Operative Documents. The
Trust is duly qualified to transact business as a foreign entity and is in good
standing in each jurisdiction in which such qualification is necessary, except
where the failure to so qualify or be in good standing would not have a material
adverse effect on such Trust. The Trust is not a party to or otherwise bound by
any agreement other than the Operative Documents. The Trust is and will, under
current law, be classified for federal income tax purposes as a grantor trust
and not as an association taxable as a corporation.
(h) The Declaration has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the Company and
the Administrators of the Trust, and, assuming due authorization, execution and
delivery by the Delaware Trustee and the Institutional Trustee, be a valid and
binding obligation of the Company and such Administrators, enforceable against
them in accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general principles
of equity ("Bankruptcy and Equity"). Each of the Administrators of the Trust is
an employee or a director of the Company and has been duly authorized by the
Company to execute and deliver the Declaration.
(i) Each of the Guarantee Agreement and the Indenture has been duly
authorized by the Company and, on the Closing Date will have been duly executed
and delivered by the Company, and, assuming due authorization, execution and
delivery by the Guarantee Trustee, in the case of the Guarantee, and by the
Indenture Trustee, in the case of the Indenture, be a valid and binding
obligation of the Company enforceable against it in accordance with its terms,
subject to Bankruptcy and Equity.
(j) The Capital Securities and the Common Securities have been duly
authorized by the Declaration and, when issued and delivered against payment
therefor on the Closing Date to you, in the case of the Capital Securities, and
to the Company, in the case of the Common Securities, each in accordance with
this Agreement, the Declaration and the Capital Securities Subscription
Agreement and the common securities subscription agreement, respectively, will
be validly issued and represent undivided beneficial interests in the assets of
the Trust. The issuance of the Capital Securities or the Common Securities is
not subject to any preemptive or other similar rights. On the Closing Date, all
of the issued and outstanding Common Securities will be directly owned by the
Company free and clear of any pledge, security interest, claim, lien or other
encumbrance.
(k) The Subordinated Debt Securities have been duly authorized by the
Company and, at the Closing Date, will have been duly executed and delivered to
the Indenture Trustee for authentication in accordance with the Indenture and
the debenture subscription agreement, and, when authenticated in the manner
provided for in the Indenture and delivered against payment therefor by the
Trust, will constitute valid and
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binding obligations of the Company entitled to the benefits of the Indenture
enforceable against the Company in accordance with their terms, subject to
Bankruptcy and Equity.
(l) This Agreement has been duly authorized, executed and delivered by
the Company and the Trust.
(m) The Trust is not in violation of any provision of the Business
Trust Act and when executed and delivered will not be in violation of the
Declaration. The execution, delivery and performance of the Operative Documents
to which it is a party by the Company or the Trust, and the consummation of the
transactions contemplated herein or therein, will not conflict with or
constitute a breach of, or a default under, or result in the creation or
imposition of any lien, charge or other encumbrance upon any property or assets
of the Trust, the Company or any of the Company's subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Trust, the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of any of them is subject, except for a conflict, breach, default, lien, charge
or encumbrance which could not reasonably be expected to have an adverse effect
on the consummation of the transactions contemplated herein or therein, nor will
such action result in any violation of the Declaration or the Business Trust Act
or require the consent, approval, authorization or order of any court or
governmental agency or body.
(n) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Florida, with all requisite
corporate power and authority to own its properties and conduct the business it
transacts and proposes to transact, and is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where the
nature of its activities requires such qualification except where the failure of
the Company to be so qualified would not, singly or in the aggregate, have a
materially adverse effect on the condition (financial or otherwise), earnings or
business of the Company and its subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business (a "Material Adverse Effect").
(o) Each of the Company's significant subsidiaries listed in Exhibit 1
(the "Subsidiaries") has been duly incorporated and is validly existing as an
entity in good standing under the laws of the jurisdiction in which it is
chartered or organized, with all requisite corporate power and authority to own
its properties and conduct the business it transacts and proposes to transact,
and is duly qualified to transact business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its activities requires
such qualification except where the failure of such Subsidiary to be so
qualified would not, singly or in the aggregate, have a Material Adverse Effect.
(p) The Company and each of its Subsidiaries have all requisite power
and authority, and all necessary material authorizations, approvals, orders,
licenses, certificates and permits of and from regulatory or governmental
officials, bodies and tribunals, to own or lease their respective properties and
to conduct their respective businesses as now being conducted, and neither the
Company nor any of the Subsidiaries
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has received any notice of proceedings relating to the revocation or
modification of any such authorizations, approvals, orders, licenses,
certificates or permits which, singly or in the aggregate, if the failure to be
so licensed or approved or if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect; and the Company and its
Subsidiaries are in compliance with all applicable laws, 5 rules, regulations
and orders and consents, the violation of which would have a Material Adverse
Effect.
(q) The audited consolidated financial statements (including the notes
thereto) and schedules of the Company and its consolidated subsidiaries for the
year ended December 31, 2000 (the "Financial Statements") and the interim
unaudited consolidated financial statements of the Company and its consolidated
subsidiaries for the twelve months ended December 31, 2001 (the "Interim
Financial Statements") provided to you are the most recent available audited and
unaudited consolidated financial statements of the Company and its consolidated
subsidiaries, respectively, and fairly present in all material respects, in
accordance with generally accepted accounting principles, the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the dates and for the periods therein
specified, subject, in the case of Interim Financial Statements, to year-end
adjustments. Such consolidated financial statements and schedules have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein).
(r) The Company's report on form FRY-9C dated December 31, 2001
provided to you is the most recent available such report and the information
therein fairly presents in all material respects the financial position of the
Company and its subsidiaries.
(s) Since the respective dates of the Financial Statements, the
Interim Financial Statements and the FR Y-9C, there has been no material adverse
change or development with respect to the financial condition or earnings of the
Company and its subsidiaries, taken as a whole.
(t) Neither the Company nor any of the Subsidiaries is in violation of
its respective charter or by-laws or similar organizational documents or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of the Subsidiaries is
subject, the effect of which violation or default in performance or observance
would have a Material Adverse Effect.
(u) The Company is duly registered as a financial holding company
under the Xxxxx-Xxxxx-Xxxxxx Act, and the regulations of the Board of Governors
of the Federal Reserve System (the "Federal Reserve") and the deposit accounts
of the Company's subsidiary banks are insured by the Federal Deposit Insurance
Corporation ("FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC,
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and no proceeding for the termination of such insurance is pending or to the
best of our knowledge threatened.
(v) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its Subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of this Agreement, the
Indenture, the Declaration and the Guarantee, or the consummation of any of the
transactions contemplated hereby or thereby; or (ii) could reasonably be
expected to have a Material Adverse Effect.
(w) Neither the Company nor any of its Subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of understanding,
written commitment or other written supervisory agreement or enforcement action
with the FDIC or any other Federal or state authority or agency charged with the
supervision or insurance of the Company and its subsidiaries.
(x) Each of the Company and its Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted.
2. Sale of the Capital Securities. Subject to the terms and conditions and
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in reliance upon the representations and warranties herein set forth, the
Company and the Trust jointly and severally hereby appoint you as placement
agent (the "Placement Agent"), and you hereby accept such appointment, to act as
the agent of the Company and the Trust, in connection with the offering of the
Capital Securities contemplated hereby, for the purpose of soliciting offers and
sales of the Capital Securities from the Purchaser (as defined below). You agree
to use your best efforts, subject to the terms and conditions of this Agreement,
on or prior to the Closing Date, to effect such placement of the Capital
Securities with an aggregate stated liquidation amount of $ 4,000,000 at a
purchase price equal to 100% of the stated liquidation amount thereof.
The Company and the Trust propose to issue and sell the Capital Securities
on the Closing Date to MM Community Funding III, Ltd, a newly formed company
with limited liability established under the laws of the Cayman Islands (the
"Purchaser"), pursuant to the terms of the Capital Securities Subscription
Agreement, to be entered into on or prior to the Closing Date (the "Capital
Securities Subscription Agreement"), between the Company, the Trust and the
Purchaser. The Company and the Trust agree to execute the Capital Securities
Subscription Agreement with the Purchaser and to return the same to you. In
addition, the Company and the Trust agree that the Purchaser shall be entitled
to the benefit of, and to rely on, the provisions of this Agreement to the
extent such provisions address or relate to the Purchaser or the Capital
Securities to be purchased by the Purchaser. No Placement Agent shall, in
fulfilling its obligations hereunder, act as an underwriter for the Capital
Securities nor is in any way obligated, directly or indirectly, to advance its
own funds to purchase any Capital Securities.
If the sale and delivery of the Capital Securities as provided herein is
consummated, the Company will pay to you on the Closing Date a commission per
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Capital Security equal to 3.00% of the stated liquidation amount thereof. Any
payment pursuant to this Section 2 shall be made by wire transfer in immediately
available funds to the U.S. account designated in writing by the party entitled
to receive such payment.
The distribution rate of the Capital Securities, as of the date hereof, is
the Floating Rate. Under certain circumstances, the distribution rate of the
Capital Securities may be reduced pursuant to a written agreement among you, the
Purchaser and the Company made prior to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Capital Securities
shall be made at 10:00 a.m. New York City time, on April 10, 2002, or such later
date as you shall designate in writing, which date and time may be postponed by
agreement between you, on the one hand, and the Company and the Trust, on the
other hand (such date and time of delivery and payment for the Capital
Securities being herein called the "Closing Date"); provided, that the Closing
Date may be no later than 60 days from the date hereof.
Delivery of the Capital Securities shall be made at such location, and in
such names and denominations, as you shall designate at least one business day
in advance of the Closing Date. The Company and the Trust agree to have the
Capital Securities available for inspection and checking by you in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date.
The closing for the purchase and sale of the Capital Securities shall occur at
the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx,
XX 00000, or such other place as the parties hereto shall agree.
4. Representations. The Placement Agent represents to the Company and the
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Trust that:
It is aware that the Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the United States
or to U.S. persons except in accordance with Rule 903 of Regulation S under the
Securities Act or pursuant to an exemption from the registration requirements of
the Securities Act. It will not offer, sell or arrange for the offer or sale of
any Securities to purchasers ("Purchasers") except in privately negotiated
transactions that will not require registration of the Securities under the
Securities Act. Terms used in the first sentence of this Section 4 have the
meanings given to them by Regulation S under the Securities Act.
5. Agreements. The Company and the Trust agree with the Placement Agent and
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the Purchaser that:
(a) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates to, resell any Capital Securities that have been
acquired by any of them.
(b) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates, nor any person acting on its or their behalf, to,
directly or indirectly, make offers or sales of any security, or solicit offers
to buy any security, under
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circumstances that would require the registration of any of the Securities under
the Securities Act, provided, however, this obligation does not apply to acts or
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omissions of the Placement Agent.
(c) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates, nor any person acting on its or their behalf, to,
engage in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with any offer or sale of any of the
Securities, provided, however, this obligation does not apply to acts or
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omissions of the Placement Agent.
(d) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates, nor any person acting on its or their behalf, to,
engage in any directed selling efforts within the meaning of Regulation S under
the Securities Act with respect to the 8 Securities, provided, however, this
obligation does not apply to acts or omissions of the Placement Agent.
(e) So long as any of the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, each of the Company and the Trust will, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or it is not
exempt from such reporting requirements pursuant to and in compliance with Rule
12g3-2(b) under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder) of
such restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Securities Act. This covenant is intended to be for the benefit of the holders,
and the prospective purchasers designated by such holders, from time to time of
such restricted securities. The information provided by the Company and the
Trust pursuant to this Section 5(e) will not, at the date thereof, contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) Neither the Company nor the Trust will, until 180 days following
the Closing Date, without your prior written consent, offer, sell, contract to
sell, grant any option to purchase or otherwise dispose of, directly or
indirectly, (i) any Capital Securities or other securities of the Trust other
than as contemplated by this Agreement, (ii) any securities that are
substantially similar to the Securities or (iii) any other securities
convertible into, or exercisable or exchangeable for, any of (i) or (ii), or
enter into an agreement, or announce an intention, to do any of the foregoing.
(g) The Company agrees to pay (i) the costs incident to the
authorization, issuance, sale and delivery of the Capital Securities and any
taxes payable in that connection and (ii) the fees and expenses of the
Institutional Trustee, the Guarantee Trustee and the Indenture Trustee.
6. Conditions to the Obligations of the Placement Agent. The Placement
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Agent's obligations to use its best efforts to procure subscription and payment
for the
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Capital Securities and the Purchaser's obligations on the Closing Date shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Trust contained herein as of the date and time that this
Agreement is executed (the "Execution Time") and the Closing Date, to the
accuracy of the statements of the Company and the Trust made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Trust of their obligations hereunder and to the following additional conditions:
(a) The Company shall have furnished to you and the Purchaser the
opinion of Xxxxxxx, Senterfitt & Xxxxxx, special counsel for the Company, dated
the Closing Date, addressed to you, in substantially the form set out in Annex A
hereto.
(b) The Company shall have furnished to you and the Purchaser the
opinion of Xxxxxxx, Senterfitt & Xxxxxx, special tax counsel for the Company,
dated the Closing Date, containing such assumptions, qualifications and
limitations as shall be reasonably acceptable to 9 you and your counsel to the
effect that for U.S. federal income tax purposes, the Subordinated Debt
Securities will constitute indebtedness of the Company, in substantially the
form set out in Annex B hereto.
(c) You and the Purchaser shall have received the opinion of Xxxxxx,
Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, special Delaware counsel for the Company and the
Trust, dated the Closing Date, addressed to you, in substantially the form set
out in Annex C hereto.
(d) You and the Purchaser shall have received the opinion of Xxxxxx,
Xxxxx, Xxxxxxxx & Xxxxxxxx LLP, counsel for the Guarantee Trustee, the
Institutional Trustee, the Delaware Trustee and the Indenture Trustee, dated the
Closing Date addressed to you, in substantially the form set out in Annex D
hereto.
(e) The Company shall have furnished to you a certificate of the
Company, signed by the President, a Vice President and by a Treasurer or Chief
Financial Officer of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company and the
Trust in this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing
Date, and the Company and the Trust have complied with all the agreements
and satisfied all the conditions on either of their part to be performed or
satisfied at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
provided to the Placement Agent, there has been no material adverse change
in the condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, whether or not arising from transactions
in the ordinary course of business.
(f) Subsequent to the Execution Time there shall not have been any
change, or any development involving a prospective change, in or affecting the
business
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or properties of the Company and its subsidiaries the effect of which, is, in
your judgment, so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Capital Securities.
(g) Prior to the Closing Date, the Company and the Trust shall have
furnished to you and to the Purchaser such further information, certificates and
documents as you may reasonably request.
(h) At the Closing Date, each of the Operative Documents shall have
been duly authorized, executed and delivered by each party thereto, and copies
thereof shall have been delivered to you.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions, certificates and documents mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably satisfactory in
form and substance to you, this Agreement and all the Placement Agent's
obligations hereunder may be canceled at, or at any time prior to, the 10
Closing Date by you. Notice of such cancellation shall be given to the Company
and the Trust in writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Expenses of the Placement Agent. If the sale of the
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Capital Securities provided for herein is not consummated because any condition
set forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 9 hereof or because of any refusal, inability or failure on
the part of the Company or the Trust to perform any agreement herein or comply
with any provision hereof, the Company will reimburse the Placement Agent upon
demand for all documented out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by you in connection
with the proposed offering of the Capital Securities.
8. Indemnification and Contribution. (a) The Company and the Trust agree
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jointly and severally to indemnify and hold harmless the Placement Agent and the
Purchaser and their respective directors, officers, employees and agents and
each person who controls the Placement Agent or the Purchaser within the meaning
of either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any information (whether oral or written) or
documents furnished or made available to the Placement Agent or the Purchaser by
the Company or the Trust, or their respective representatives in connection with
the transactions contemplated herein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability
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or action. This indemnity agreement will be in addition to any liability which
the Company or the Trust may otherwise have.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 8(a) hereunder.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a), above unless and to the
extent that the indemnifying party did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party 11 or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
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indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnified
party will not, without the prior written consent of the indemnifying parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or
11
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action).
(d) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Trust and you agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Trust and you
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Trust on the one hand and by you on the
other from the offering of the Securities; provided, however, that in no case
-------- -------
shall you be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company, the Trust and you shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Trust on the one hand and of you on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company and the Trust shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits received
by you shall be deemed to be equal to the total commissions specified in Section
2. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
provided by the Company and the Trust on the one hand or you on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Trust and you agree that it would not be 12 just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8, the
Purchaser, each person who controls the Placement Agent or the Purchaser within
the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of the Placement Agent or the Purchaser shall have
the same rights to contribution as you, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer and director of the Company and each Administrator of the Trust shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). 9.
9. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of you, by notice given to the Company and the Trust prior
to delivery of and payment for the Capital Securities, if prior to such time (i)
there has occurred any Material Adverse Effect, or (ii) trading in any of the
Company's securities shall have been suspended by the Commission or the exchange
upon which the Company's securities are traded, if any, or trading in securities
generally on the New York Stock
12
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or Florida authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in your judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Capital Securities.
10. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company and
the Trust or their respective officers or trustees and of the Placement Agent
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Placement
Agent, the Company or the Trust or any of the officers, directors or trustees,
administrators, controlling persons, and will survive delivery of and payment
for the Capital Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Placement Agent, will be mailed, delivered
or telecopied and confirmed to at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
attention of the Legal Department; if sent to the Company or the Trust, will be
mailed, delivered or telecopied and confirmed to it at 0000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxxxx, XX 00000, Attention: X. Xxxxx Xxxxxxx, Xx..
12. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers and
directors and controlling persons, and no other person will have any right or
obligation hereunder.
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN
---------------
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
14. Counterparts. This Agreement may contain more than one counterpart of
------------
the signature page and this Agreement may be executed by the affixing of the
signature of each of the Company, the Trust and you to any of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a signature page.
13
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Trust and you.
Very truly yours,
FLORIDA BANKS, INC.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President and CEO
FLORIDA BANKS CAPITAL
TRUST II
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Administrator
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
14
SCHEDULE 1
List of Significant Subsidiaries
Florida Bank, NA
15
ANNEX A
Pursuant to Section 6(a) of the Placement Agreement, special counsel for
the Company shall deliver an opinion in substantially the following form:
(i) each of the Company and the Subsidiaries (A) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and conduct
the business it transacts and proposes to transact, (B) is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business, except where
the failure to be so qualified would not, singularly or in the aggregate,
have a Material Adverse Effect, and (C) holds all material approvals,
authorizations, orders, licenses, certificates and permits from
governmental authorities necessary for the conduct of its business, except
where the failure to hold such approvals, authorizations, orders, licenses,
certificates and/or permits would not, singularly or in the aggregate, have
a Material Adverse Effect;
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or in the Operative Documents, in
connection with the solicitation of the purchase and sale of the Capital
Securities by you or the purchase of the Subordinated Debt Securities by
the Trust except such approvals (specified in such opinion) as have been
obtained;
(iii) neither the issue and sale of the Capital Securities or the
Subordinated Debt Securities, the execution and delivery of the Operative
Documents by the Company or the Trust and the consummation of any other of
the transactions therein contemplated in any Operative Document nor the
fulfillment of the terms thereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or
by-laws of the Company or any of its Subsidiaries, the terms of any
indenture or other agreement or instrument known to such counsel and to
which the Company or any of its Subsidiaries is a party or bound or any
judgment, order, decree, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of its Subsidiaries, or any provision of applicable law,
known to such counsel to be applicable to the Company or any of its
Subsidiaries, except for such conflicts, breaches, violations or defaults
which are not, in the aggregate, material to the Company and its
subsidiaries taken as a whole and which do not adversely affect the
consummation of the transactions contemplated in this Agreement and the
Operative Documents;
(iv) the Company is duly registered as a financial holding
company under the Xxxxx-Xxxxx-Xxxxxx Act and the regulations thereunder of
the Federal Reserve, and the deposit accounts of the Company's banking
subsidiaries are insured by 2 the FDIC to the fullest extent permitted by
law and the rules and regulations of the FDIC, and, to the best of our
knowledge no proceeding for the termination of such insurance is pending or
threatened;
(v) each of the Indenture and the Guarantee Agreement has been
duly authorized, executed and delivered by the Company, and (in the case of
the Indenture and the Guarantee, respectively, assuming it is duly
authorized, executed and delivered by the Indenture Trustee and the
Guarantee Trustee, respectively) constitutes a legal, valid and binding
instrument of the Company enforceable against the Company in accordance
with its terms, subject to Bankruptcy and Equity; the Subordinated Debt
Securities have been duly and validly authorized and delivered to the
Indenture Trustee for authentication in accordance with the Indenture, and
when authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Trust, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with its terms,
subject to Bankruptcy and Equity;
(vi) this Agreement and the Capital Securities Subscription
Agreement have been duly authorized, executed and delivered by the Company;
(vii) the Declaration has been duly authorized, executed and
delivered by the Company and the Trust;
(viii) this Agreement and the Capital Securities Subscription
Agreement have been duly executed and delivered by the Trust;
(ix) neither the Company nor the Trust is an "investment company"
or an entity "controlled" by an "investment company," required to be
registered under the Investment Company Act; and
(x) assuming the accuracy of the representations and warranties
and compliance with the agreements contained herein, no registration of any
of the Securities under the Securities Act is required for the offer and
sale to you of the Capital Securities in the manner contemplated by this
Agreement, and the Indenture, the Declaration and the Guarantee are not
required to be qualified under the Trust Indenture Act of 1939.
In rendering such opinions, such counsel may (A) state that its opinion is
limited to the laws of New York, the corporate laws of the State of Delaware and
the Federal laws of the United States and (B) rely as to matters involving the
application of laws of any jurisdiction other than New York and Delaware or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to you and as to matters of fact, to the extent deemed proper,
on certificates of responsible officers of the Company and public officials.
2
ANNEX B
Pursuant to Section 6(b) of the Placement Agreement, special tax counsel for the
Company shall deliver an opinion in substantially the following form:
We have acted as special tax counsel to Florida Banks, Inc., a Florida
corporation (the "Company"), in connection with the offering by Florida Banks
Capital Trust II (the "Trust") of 4,000 Floating Rate TRUPS(R) (liquidation
amount $1,000 per capital security) (the "Capital Securities"). The Capital
Securities represent undivided beneficial ownership interests in $ 4,124,000 in
aggregate principal amount of Floating Rate Junior Subordinated Debt Securities
due 2032 of the Company (the "Subordinated Debt Securities"). This opinion
letter is furnished pursuant to Section 6(b) of the Placement Agreement dated
March 26, 2002, between the Company, the Trust and you.
In arriving at the opinions expressed below we have examined executed
copies of (i) the Amended and Restated Declaration of Trust of the Trust dated
the date hereof (the "Declaration"), and (ii) the Indenture relating to the
issuance of the Subordinated Debt Securities dated the date hereof (the
"Indenture") (together, the "Operative Documents"). In addition, we have made
such investigations of law and fact as we have deemed appropriate as a basis for
the opinion expressed below.
It is our opinion that, under current law and assuming the performance of
the Operative Documents in accordance with the terms described therein, the
Subordinated Debt Securities will be treated for United States federal income
tax purposes as indebtedness of the Company.
Our opinion is based on the U.S. Internal Revenue Code of 1986, as amended,
Treasury regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all as of the date hereof and all of which are subject
to change, possibly on a retroactive basis. In rendering this opinion, we are
expressing our views only as to the federal income tax laws of the United States
of America.
ANNEX C
Pursuant to Section 6(c) of the Placement Agreement, special Delaware
counsel for the Company and the Trust shall deliver an opinion in substantially
the following form:
1. The Trust has been duly formed and is validly existing in good standing
as a business trust under the Act.
2. The Declaration constitutes a valid and binding obligation of the
Sponsor and Trustees party thereto, enforceable against such Sponsor and
Trustees in accordance with its terms.
3. Under the Act and the Declaration, the Trust has the requisite trust
power and authority (i) to own its properties and conduct its business, all as
described in the Declaration, (ii) to execute and deliver, and perform its
obligations under, the Trust Documents, (iii) to authorize, issue, sell and
perform its obligations under its Trust Securities, and (iv) to purchase and
hold the Debentures.
4. The Capital Securities of the Trust have been duly authorized for
issuance by the Trust and, when issued, executed and authenticated in accordance
with the Declaration and delivered against payment therefor in accordance with
the Declaration and the Capital Securities Subscription Agreement, will be
validly issued and, subject to the qualifications set forth in paragraph 5
below, fully paid and nonassessable undivided beneficial interests in the assets
of the Trust and the Capital Security Holders will be entitled to the benefits
provided by the Declaration.
5. Each Capital Security Holder, in such capacity, will be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note, however, that the Capital Security Holders may be required
to make payment or provide indemnity or security as set forth in the
Declaration.
6. Under the Declaration and the Act, the issuance of the Trust Securities
of the Trust is not subject to preemptive rights.
7. The Common Securities of the Trust have been duly authorized for
issuance by the Trust and, when issued and executed in accordance with the
Declaration and delivered against payment therefor in accordance with the
Declaration and the Common Securities Subscription Agreement, will be validly
issued undivided beneficial interests in the assets of the Trust.
8. Under the Declaration and the Act, the execution and delivery by the
Trust of the Trust Documents, and the performance by the Trust of its
obligations thereunder, have been duly authorized by the requisite trust action
on the part of such Trust.
9. The issuance and sale by the Trust of its Trust Securities, the
execution, delivery and performance by the Trust of the Trust Documents, the
consummation by
the Trust of the 2 transactions contemplated by the Trust Documents, and the
compliance by the Trust with its obligations thereunder are not prohibited by
(i) the Declaration or the Certificate, or (ii) any law or administrative
regulation of the State of Delaware applicable to such Trust.
10. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely in connection with the issuance and sale by the Trust of its
Trust Securities, the due authorization, execution and delivery by the Trust of
the Trust Documents or the performance by the Trust of its obligations under the
Trust Documents.
11. The Capital Security Holders (other than those Capital Security Holders
who reside or are domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
2
ANNEX D
Pursuant to Section 6(d) of the Placement Agreement, counsel for the
Guarantee Trustee, the Institutional Trustee, the Delaware Trustee and the
Indenture Trustee shall deliver an opinion in substantially the following form:
1. Wilmington Trust Company ("WTC") is a Delaware banking corporation with
trust powers, duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, with requisite corporate power and authority to
execute and deliver, and to perform its obligations under, the Transaction
Documents.
2. The execution, delivery, and performance by WTC of the Transaction
Documents have been duly authorized by all necessary corporate action on the
part of WTC, and the Transaction Documents have been duly executed and delivered
by WTC.
3. The execution, delivery and performance of the Transaction Documents by
WTC and the consummation of any of the transactions by WTC contemplated thereby
are not prohibited by (i) the Charter or Bylaws of WTC, (ii) any law or
administrative regulation of the State of Delaware or the United States of
America governing the banking and trust powers of WTC, or (iii) to our knowledge
(based and relying solely on the Officer Certificates), any agreements or
instruments to which WTC is a party or by which WTC is bound or any judgments or
order applicable to WTC.
4. The Debentures delivered on the date hereof have been authenticated by
due execution thereof and delivered by WTC, as Debenture Trustee, in accordance
with the Corporation Order. The Capital Securities delivered on the date hereof
have been authenticated by due execution thereof and delivered by WTC, as
Institutional Trustee, in accordance with the related Trust Order.
5. None of the execution, delivery and performance by WTC of the
Transaction Documents and the consummation of any of the transactions by WTC
contemplated thereby requires the consent, authorization, order or approval of,
the withholding of objection on the part of, the giving of notice to, the
registration with or the taking of any other action in respect of, any
governmental authority or agency, under any law or administrative regulation of
the State of Delaware or the United States of America governing the banking and
trust powers of WTC, except for the filing of the Certificate for the Trust with
the Office of the Secretary of State of the State of Delaware pursuant to the
Delaware Business Trust Act 12 Del.C. Section 3801, et seq. (which filing has
been duly made).
