EXHIBIT 1.1
UNDERWRITING AGREEMENT
1,000,000 Shares
(plus 150,000 Shares to cover over-allotments, if any)
TIB FINANCIAL CORP.
COMMON STOCK, PAR VALUE $0.10 PER SHARE
UNDERWRITING AGREEMENT
[ ], 2004
ADVEST, INC.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TIB Financial Corp., a Florida corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to sell to Advest, Inc. (the
"Underwriter") an aggregate of 1,000,000 shares (the "Firm Shares") of the
Company's common stock, par value $0.10 per share (the "Common Stock").
In addition, in order to cover over-allotments in the sale of the Firm
Shares, the Underwriter may, at its election and subject to the terms and
conditions stated herein, purchase up to 150,000 additional shares of Common
Stock from the Company (such additional shares of Common Stock, the "Option
Shares"). The Firm Shares and the Option Shares are referred to collectively as
the "Shares".
The Company and the Underwriter, intending to be legally bound, hereby
confirm their agreement as follows:
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act") in
connection with the offering contemplated by this Agreement. A registration
statement on Form S-3 (File No. 333-_______) with respect to the Shares,
including a prospectus subject to completion, has been filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act, and one or more amendments to such registration statement may have been so
filed. After the execution of this Agreement, the Company will file with the
Commission either (i) if such registration statement, as it may have been
amended, has become effective under the Securities Act and information has been
omitted therefrom in accordance with Rule 430A under the Securities Act, a
prospectus in the form most recently included in an 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 or permitted by Rule 424(b) under the Securities Act and as have been
provided to and approved by the Underwriter, or (ii) if such registration
statement, as it may have been amended, has not become effective under the
Securities Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been provided to and approved by the
Underwriter prior to the execution of this Agreement. As used in this Agreement,
the term "Registration Statement" means (i) such registration statement, as
amended at the time when it was or is declared effective, including (A) all
financial statements, schedules and exhibits thereto, (B) all documents (or
portions thereof) incorporated by reference therein, and (C) any information
omitted therefrom pursuant to Rule 430A under the Securities Act and included in
the Prospectus (as
1
hereinafter defined) and (ii) any registration statement, if any, filed pursuant
to Rule 462(b) of the Securities Act and any documents incorporated therein by
reference; the term "Preliminary Prospectus" means each prospectus subject to
completion included in such registration statement or any amendment or
post-effective amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement at the time it was or
is declared effective), including all documents (or portions thereof)
incorporated by reference therein; and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the
Securities Act or, if no prospectus is required to be so filed, such term means
the prospectus included in the Registration Statement, in either case, including
all documents (or portions thereof) incorporated by reference therein, if any.
As used herein, any reference to any statement or information as being "made",
"included", "contained", "disclosed" or "set forth" in any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or the
Registration Statement or any amendment thereto (or other similar references)
shall refer both to information and statements actually appearing in such
document as well as information and statements incorporated by reference
therein.
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened, by the Commission or
the securities authority of any state or other jurisdiction. If the Registration
Statement has become effective under the Securities Act, no stop order
suspending the effectiveness of the Registration Statement or any part thereof,
including any registration statement, if any, filed pursuant to Rule 462(b) of
the Securities Act, whether effective or to hereafter become effective, has been
issued and no proceeding for that purpose has been instituted or threatened or,
to the knowledge of the Company, contemplated by the Commission or the
securities authority of any state or other jurisdiction.
(c) When any Preliminary Prospectus was filed with the Commission
it contained all material statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of, the
Securities Act and the rules and regulations of the Commission thereunder. Each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder. When the Registration Statement or any amendment thereto was or is
declared effective, and at all times subsequent thereto up to the Closing Date
or any Option Closing Date (as defined below), it (i) contained and will contain
all statements required to be stated therein in accordance with, and complied or
will comply with the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder and (ii) did not and will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), and at all times subsequent thereto up to the Closing Date
and any Option Closing Date, the Prospectus, as amended or supplemented at any
such time, (i) contained and will contain all statements required to be stated
therein in accordance with, and complied or will comply with the requirements
of, the Securities Act and the rules and regulations of the Commission
thereunder and (ii) did not and will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (c) do not
apply to statements or omissions made in the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein. It is understood that
the statements set forth in the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in the [o, o and o]
paragraph[s] under the section entitled "Underwriting" constitute
2
the only written information furnished to the Company by or on behalf of the
Underwriter specifically for use in the Registration Statement or any amendment
thereto or the Prospectus and any amendment or supplement thereto, as the case
may be.
(d) The documents which are incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the Prospectus or from
which information is so incorporated by reference, when they became effective or
were filed with the Commission, as the case may be (or, if any amendment with
respect to any such documents was filed or became effective, when such amendment
was filed or became effective), complied in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make to the
statements therein not misleading.
(e) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of its
direct or indirect subsidiaries is a party or to which any of the properties of
the Company or any subsidiary is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or any
relationships, transactions, statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(f) Each of the Company and its direct and indirect subsidiaries
has been duly incorporated or organized, is validly existing as a corporation or
banking association in good standing under the laws of its jurisdiction of
incorporation or organization and has full power and authority (corporate and
other) to own or lease its properties and conduct its business as described in
the Prospectus. The Company is duly registered under the Bank Holding Company
Act of 1956, as amended. The Company has full power and authority (corporate and
other) to enter into this Agreement and to perform its obligations hereunder. No
proceeding has been instituted in any jurisdiction revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority.
(g) The Company's authorized, issued and outstanding capital stock
is as disclosed in the Prospectus. All of the issued shares of capital stock of
the Company, including the Shares to be sold by the Company pursuant hereto when
delivered against payment therefor as contemplated hereby, have been duly
authorized and validly issued, are fully paid and nonassessable and conform to
the descriptions of the Common Stock contained in the Prospectus, and the
holders thereof will not be subject to personal liability solely by reason of
being such holders. None of the issued shares of capital stock of the Company or
any of its direct or indirect subsidiaries has been issued or is owned or held
in violation of any statutory or other preemptive rights of shareholders, and no
person or entity (including any holder of outstanding shares of capital stock of
the Company or its direct or indirect subsidiaries) has any statutory or other
preemptive or other rights to subscribe for any of the Shares. None of the
capital stock of the Company or any of its direct or indirect subsidiaries has
been issued in violation of applicable federal or state securities laws. The
certificates representing the Shares are in proper legal form under, and conform
in all respects to the requirements of, the Florida Business Corporation Act and
the requirements of the Nasdaq National Market System.
(h) All of the issued shares of capital stock of each of the
Company's direct and indirect subsidiaries, specifically TIB Bank of the Keys
(the "Bank"), have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company or one of its
subsidiaries, free and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting agreements, proxies,
voting trusts, equities or claims of any nature whatsoever (collectively,
"Encumbrances"), including, without limitation, any Encumbrance arising or
3
resulting from any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement of or entered into by the Company or the Bank. Other than the
outstanding capital stock of the Bank and the equity securities held in the
investment portfolios of the Company and such subsidiaries (the composition of
which is not materially different from the disclosures in the Prospectus as of
specific dates), the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other association.
(i) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or any of its direct or
indirect subsidiaries convertible into or exchangeable for any capital stock of
the Company or any of its direct or indirect subsidiaries, (ii) warrants, rights
or options to subscribe for or purchase from the Company or any of its direct or
indirect subsidiaries any such capital stock or any such convertible or
exchangeable securities or obligations or (iii) obligations of the Company or
any of its direct or indirect subsidiaries to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(j) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) neither the Company nor any
of its direct or indirect subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, not in the
ordinary course of business, that are material to the Company or its direct or
indirect subsidiaries, (ii) neither the Company nor any of its direct or
indirect subsidiaries has purchased any of its outstanding capital stock,
declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock or has been delinquent in the payment of principal or interest on
any outstanding debt obligations, (iii) there has not been any change in the
capital stock, long-term debt or short-term debt of the Company or any of its
direct or indirect subsidiaries and (iv) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the condition (financial or otherwise), business, prospects,
assets, properties, results of operations or net worth of the Company or its
direct or indirect subsidiaries, in each case other than as disclosed in or
contemplated by the Prospectus.
(k) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or, requiring the
Company to include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
requiring the registration of any securities pursuant to any other registration
statement filed by the Company under the Securities Act. Neither the filing of
the Registration Statement nor the offering or sale of Shares as contemplated by
this Agreement gives any security holder of the Company any rights for or
relating to the registration of any shares of Common Stock or any other capital
stock of the Company, except such that have been satisfied or waived.
(l) Neither the Company nor any of its direct or indirect
subsidiaries is, or with the giving of notice or passage of time or both would
be, in violation of its Articles of Incorporation or By-Laws (or comparable
charter documents) or in default under any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which the Company or
any of its direct or indirect subsidiaries is a party or to which any of their
respective properties or assets are subject.
(m) The Company and its direct and indirect subsidiaries have good
and marketable title in fee simple to all real property, if any, and good title
to all personal property owned by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in the Prospectus or such as would not
have a material adverse effect on the condition (financial or otherwise),
business, prospects, assets, properties, results of operations or net worth of
the Company and its subsidiaries taken as a whole and do not interfere with the
use made or
4
proposed to be made of such property by the Company or its direct or indirect
subsidiaries; and any real property and buildings held under lease by the
Company or any of its direct or indirect subsidiaries are held under valid,
subsisting and enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or any direct
or indirect subsidiary.
(n) No consent, approval, authorization, order or declaration of
or from, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except the
registration of the Shares under the Securities Act (which, if the Registration
Statement is not effective as of the time of execution hereof, shall be obtained
as provided in this Agreement) and of the Common Stock under the Exchange Act
and such as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or under state securities or blue sky laws in connection with
the offer, sale and distribution of the Shares by the Underwriter.
(o) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or investigation
(including without limitation, any bank or bank holding company regulatory
proceeding) pending or, to the knowledge of the Company, threatened in which the
Company or any of its direct or indirect subsidiaries is a party or of which any
of their respective properties or assets are the subject which, if determined
adversely to the Company or any of its direct or indirect subsidiaries, would
individually or in the aggregate have a material adverse effect on the condition
(financial or otherwise), business, prospects, assets, properties, results of
operations or net worth of the Company and its subsidiaries taken as a whole.
Neither the Company nor any direct or indirect subsidiary is in violation of, or
in default with respect to, any law, statute, rule, regulation, order, judgment
or decree, except as described in the Prospectus or such as do not and will not
individually or in the aggregate have a material adverse effect on the condition
(financial or otherwise), business, prospects, assets, properties, results of
operations or net worth of the Company and its subsidiaries taken as a whole,
and neither the Company nor any direct or indirect subsidiary is required to
take any action in order to avoid any such violation or default.
(p) Xxxxx, Xxxxxx and Company, LLC, which has certified certain
financial statements of the Company and its consolidated subsidiaries included
in the Registration Statement and the Prospectus, are independent public
accountants as required by the Securities Act, the Exchange Act and the
respective rules and regulations of the Commission thereunder and are registered
and in good standing with the Public Company Accounting Oversight Board.
(q) The consolidated financial statements and schedules (including
the related notes) of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the Prospectus and/or
any Preliminary Prospectus were prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved and
fairly present the financial position and results of operations of the Company
and its subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The selected financial data and operating and statistical information
set forth under the captions "Prospectus Summary", "Summary Consolidated
Financial Data", "Capitalization", "Use of Proceeds", "Selected Financial Data",
"Management's Discussion and Analysis of Financial Condition and Results of
Operation" and "Business" in the Prospectus fairly present, on the basis stated
in the Prospectus, the information included therein, and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement. The supporting notes and schedules included in the
Registration Statement, the Prospectus and/or any Preliminary Prospectus fairly
state in all material respects the information required to be stated therein in
relation to the financial statements taken as a whole. The unaudited interim
consolidated financial statements included or incorporated by reference in the
Registration Statement comply as to form in all
5
material respects with the applicable accounting requirements of Regulation S-X
under the Securities Act.
(r) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the Underwriter,
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights generally and
to general equitable principles and except as the enforceability of rights to
indemnity and contribution under this Agreement may be limited under applicable
securities laws or the public policy underlying such laws.
(s) The sale of the Shares and the performance of this Agreement
and the consummation of the transactions herein contemplated will not (with or
without the giving of notice or the passage of time or both) (i) conflict with
or violate any term or provision of the Articles of Incorporation or By-Laws or
comparable charter documents of the Company or any of its direct or indirect
subsidiaries, in each case as amended to date, (ii) result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or any of its direct or indirect subsidiaries
is a party or to which any of their respective properties or assets is subject,
(iii) conflict with or violate any law, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its direct or indirect subsidiaries or
any of their respective properties or assets or (iv) result in a breach,
termination or lapse of the corporate power and authority of the Company or any
of its direct or indirect subsidiaries to own or lease and operate their
respective assets and properties and conduct their respective business as
described in the Prospectus.
(t) The Company has not distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other
than the Registration Statement, a Preliminary Prospectus, the Prospectus and
other material, if any, permitted by the Securities Act.
(u) Neither the Company nor any of its officers, directors or
affiliates has (i) taken, directly or indirectly, any action designed to cause
or result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or (ii) since the
filing of the Registration Statement, (A) sold, bid for, purchased or paid
anyone any compensation for soliciting purchases of, the Shares or (B) paid or
agreed to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
(v) The operations of the Company and its direct and indirect
subsidiaries with respect to any real property currently leased or owned or by
any means controlled by the Company or any direct or indirect subsidiary (the
"Real Property") are in compliance in all material respects with all federal,
state, and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment (collectively, "Laws"), and
the Company and its direct and indirect subsidiaries have not violated any Laws
in a way which would have a material adverse effect on the condition (financial
or otherwise), business, prospects, assets, properties, results of operations or
net worth of the Company and its subsidiaries taken as a whole. Except as
disclosed in the Prospectus, there is no pending or, to the knowledge of the
Company, threatened material claim, litigation or administrative agency
proceeding, nor has the Company or any direct or indirect subsidiary received
any written or oral notice from any governmental entity or third party, that:
(i) alleges a violation of any Laws by the Company or any direct or indirect
subsidiary or (ii) alleges the Company or any direct or indirect subsidiary is a
liable party under the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. ss. ss. 9601 et seq. or any state superfund law.
6
(w) The Company and each of its direct and indirect subsidiaries
owns or possesses adequate rights to use all patents, patent applications,
trademarks, trademark registrations, trade names, servicemark registrations,
copyrights and licenses necessary for the conduct of the business of the Company
and its direct and indirect subsidiaries or ownership of their respective
properties, and neither the Company nor its direct or indirect subsidiaries has
received notice of conflict with the asserted rights of others in respect
thereof which has not been resolved.
(x) Each of the Company and its direct and indirect subsidiaries
makes and keeps accurate books and records reflecting its assets and maintains
internal accounting controls which provide reasonable assurance that (i)
transactions are executed in accordance with management's authorization, (ii)
transactions are recorded as necessary to permit preparation of the Company's
consolidated financial statements in accordance with generally accepted
accounting principles and to maintain accountability for the assets of the
Company, (iii) access to the assets of the Company and each of its direct and
indirect subsidiaries is permitted only in accordance with management's
authorization and (iv) the recorded accountability for assets of the Company and
each of its direct and indirect subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) The Company is in compliance with the applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002. The Company has established and maintains
disclosure controls and procedures as required by Rule 13a-15 under the Exchange
Act. As of the end of each period covered by an annual or quarterly report filed
with the Commission since the effective date of the Xxxxxxxx-Xxxxx Act of 2002,
the Company has conducted an evaluation under the supervision and with the
participation of its management, including the Company's Chief Executive Officer
and Chief Financial Officer, of the effectiveness of the design and operation of
its disclosure controls and procedures, and the Company's Chief Executive
Officer and Chief Financial Officer have concluded that its disclosure controls
and procedures are effective to ensure that information required to be disclosed
in such reports is recorded, processed, summarized and reported, within the
periods specified in, and in accordance with the requirements of, the SEC's
rules, regulations and forms. Based on such evaluations, (i) there were no
significant deficiencies or material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the Company's ability to record, process, summarize and report
financial information and (ii) there was no fraud, whether or not material, that
involved management or other employees of the Company or any of its subsidiaries
who have a significant role in the Company's internal control over financial
reporting.
(z) The Company and its direct and indirect subsidiaries have
filed all foreign, federal, state and local tax returns that are required to be
filed by them and have paid all taxes shown as due on such returns, as well as
all other taxes, assessments and governmental charges that are due and payable;
and no material deficiency with respect to any such return has been assessed or
proposed.
(aa) Except for such plans that are expressly disclosed in the
Prospectus, the Company and its direct and indirect subsidiaries do not
maintain, contribute to or have any material liability with respect to any
employee benefit plan, profit sharing plan, employee pension benefit plan,
employee welfare benefit plan, equity-based plan or deferred compensation plan
or arrangement ("Plans") that are subject to the provisions of the Employee
Retirement Income Security Act of 1974, as amended, or the rules and regulations
thereunder ("ERISA"). All Plans are in compliance in all material respects with
all applicable laws, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the "Code"), and have been operated and administered
in all material respects in accordance with their terms. No Plan is a defined
benefit plan or multi-employer plan. The Company does not provide retiree life
and/or retiree health benefits or coverage for any employee or any beneficiary
of any employee after such employee's termination of employment, except as
required by Section 4980B of the Code or under a Plan which is intended to be
"qualified" under Section 401(a) of the Code. No material liability has been, or
could reasonably be expected to be, incurred under Title IV of ERISA or Section
412 of the Code by any
7
entity required to be aggregated with the Company or any of its direct or
indirect subsidiaries pursuant to Section 4001(b) of ERISA and/or Section 414(b)
or (c) of the Code (and the regulations promulgated thereunder) with respect to
any "employee pension benefit plan" which is not a Plan. As used in this
subsection, the terms "defined benefit plan", "employee benefit plan", "employee
pension benefit plan", "employee welfare benefit plan" and "multi-employer plan"
shall have the respective meanings assigned to such terms in Section 3 of ERISA.
(bb) No material labor dispute exists with the Company's or any
direct or indirect subsidiary's employees, and no such labor dispute is
threatened. The Company has no knowledge of any existing or threatened labor
disturbance by the employees of any of its principal agents, suppliers,
contractors or customers that would have a material adverse effect on the
condition (financial or otherwise), business, prospects, assets, properties,
results of operations or net worth of the Company and its subsidiaries taken as
a whole.
(cc) The Company and its direct and indirect subsidiaries have
received all permits, licenses, authorizations, registrations, qualifications
and approvals (collectively, "Permits") of governmental or regulatory
authorities (including, without limitation, all state and federal bank and bank
holding company regulatory authorities) as may be required of them to own their
respective properties and conduct their respective businesses in the manner
described in the Prospectus, subject to such qualifications as may be set forth
in the Prospectus; and the Company and its direct and indirect subsidiaries have
fulfilled and performed all of their material obligations with respect to such
Permits, and no event has occurred which allows or, after notice or lapse of
time or both, would allow revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, such Permits contain no
restrictions that materially affect the ability of the Company or its direct or
indirect subsidiaries to conduct their businesses, and no state or federal bank
or bank holding company regulatory agency or body has issued any order or decree
impairing, restricting or prohibiting the payment of dividends to the Company by
any of its direct or indirect subsidiaries.
(dd) The Company and each of its direct and indirect subsidiaries
has filed, or has had filed on its behalf, on a timely basis, all materials,
reports, documents and information, including but not limited to annual reports,
call reports and reports of examination with each applicable bank and bank
holding company regulatory authority, board or agency, which are required to be
filed by it, except where the failure to have timely filed such materials,
reports, documents and information would not have a material adverse effect on
the condition (financial or otherwise), business, prospects, assets, properties,
results of operations or net worth of the Company and its subsidiaries taken as
a whole.
(ee) Neither the Company nor any of its direct or indirect
subsidiaries is an "investment company" or a company "controlled" by an
investment company as such terms are defined in Sections 3(a) and 2(a)(9),
respectively, of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and, if the Company or any of its direct or indirect subsidiaries
conducts its business as set forth in the Registration Statement and the
Prospectus, will not become an "investment company" and will not be required to
register under the Investment Company Act.
(ff) The Bank is a member in good standing of the Federal Home Loan
Bank System and its deposits are insured by the Federal Deposit Insurance
Corporation up to the legal limits.
(gg) The Company and each direct and indirect subsidiary have in
place and effective such policies of insurance, with limits of liability in such
amounts, as are normal and prudent in the ordinary scope of business similar to
that of the Company and such subsidiary in the respective jurisdiction in which
they conduct business.
8
(hh) All documents delivered or to be delivered by the Company or
any of its representatives in connection with the issuance and sale of the
Shares were on the dates on which they were delivered, or will be on the dates
on which they are to be delivered, true, complete and correct in all material
respects; further, neither this Agreement nor any certificate, statement or
other document delivered or to be delivered by the Company or any of its
subsidiaries contains or will contain any untrue statement of a material fact or
omits or will omit to state a 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.
Any certificate signed by any director or officer of the Company or any
of its subsidiaries, as the case may be, and delivered to the Underwriter or to
counsel for the Underwriter shall be deemed a representation and warranty of the
Company to the Underwriter as to the matters covered thereby.
Any certificate delivered by the Company or any of its subsidiaries, as
the case may be, to counsel for the Company for purposes of enabling such
counsel to render an opinion pursuant to Section 7 will also be furnished to the
Underwriter and counsel for the Underwriter and shall be deemed to be additional
representations and warranties to the Underwriter by the Company as to the
matters covered thereby.
2. Purchase and Sale of Shares.
(a) Subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at a purchase price of [ ] Dollars ($[ ]) per share
(the "Per Share Price"), the Firm Shares.
(b) The Company hereby grants to the Underwriter the right to
purchase at its election in whole or in part up to 150,000 Option Shares, at the
Per Share Price, for the sole purpose of covering over-allotments in the sale of
the Firm Shares. The option granted hereunder may be exercised at any time (but
not more than once) within thirty (30) days after the date of this Agreement,
upon notice by the Underwriter to the Company which sets forth the aggregate
number of Option Shares as to which the Underwriter is exercising the option, as
well as the date, time and place on which such Option Shares are to be
delivered. Such time of delivery may not be earlier than the Closing Date and
herein is called the "Option Closing Date". The Option Closing Date shall be
determined by the Underwriter, but if at any time other than the Closing Date,
shall not be earlier than two nor later than ten full business days after
delivery of such notice to exercise. In the event the Underwriter elects to
purchase all or a portion of the Option Shares, the Company agrees to furnish or
cause to be furnished to the Underwriter the certificates, letters and opinions,
and to satisfy all conditions, set forth in Section 7 hereof at the Option
Closing Date.
(c) The Underwriter shall be under no obligation to purchase any
Option Shares prior to an exercise of the option with respect to such Shares
granted pursuant to Section 2(b) hereof.
3. Offering by the Underwriter. The Underwriter proposes to offer
the Shares for sale upon the terms and conditions disclosed in the Prospectus.
4. Delivery of Shares; Closing. Certificates in definitive form
for the Shares to be purchased by the Underwriter hereunder, and in such
denominations and registered in such names as the Underwriter may request upon
at least 48 hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to the Underwriter, against payment of the purchase price
therefor by wire transfer of immediately available funds to such account as the
Company shall designate in writing. The closing of the sale and purchase of the
Shares shall be held at the offices of Xxxxxxx Spidi & Xxxxx, PC, 0000 Xxx Xxxx
Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000. The time and date of such
delivery and
9
payment shall be, with respect to the Firm Shares, at 9:00 a.m., Washington, DC
time, on the third (3rd) full business day after this Agreement is executed or
at such other time and date as the Underwriter and the Company may agree upon in
writing. Such time and date for the delivery of the Firm Shares is herein called
the "Closing Date". The Company will make certificates available with respect to
the Shares for checking and packaging at least 24 hours prior to the Closing
Date and any Option Closing Date at the offices of Xxxxxxx Spidi & Xxxxx, PC,
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx, Xxxxxxxxxx, XX 00000 or at such
other location specified by the Underwriter in writing at least 48 hours prior
to the Closing Date or Option Closing Date, as the case may be.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective prior to the execution and delivery of
this Agreement, to become effective. If the Registration Statement has been
declared effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by the
Underwriter, subparagraph (4)) of Rule 424(b) within the time period required
under Rule 424(b) under the Securities Act. The Company will advise the
Underwriter promptly of any such filing pursuant to Rule 424(b).
(b) The Company will not file with the Commission the Prospectus
or the amendment referred to in Section 1(a) hereof, any amendment or supplement
to the Prospectus or any amendment to the Registration Statement unless the
Underwriter has received a reasonable period of time to review any such proposed
amendment or supplement and consented to the filing thereof and will use its
best efforts to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. Upon the reasonable request of the
Underwriter or counsel for the Underwriter, the Company will promptly prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Shares by the Underwriter and will use its best
efforts to cause any such amendment to the Registration Statement to be declared
effective as promptly as possible. If required, the Company will file any
amendment or supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Securities Act. The
Company will advise the Underwriter, promptly after receiving notice thereof, of
the time when the Registration Statement or any amendment thereto has been filed
or declared effective or the Prospectus or any amendment or supplement thereto
has been filed and will provide evidence to the Underwriter of each such filing
or effectiveness.
(c) The Company will advise the Underwriter promptly after
receiving notice or obtaining knowledge of (i) when any post-effective amendment
to the Registration Statement is filed with the Commission, (ii) the receipt of
any comments from the Commission concerning the Registration Statement, (iii)
when any post-effective amendment to the Registration Statement becomes
effective, or when any supplement to the Prospectus or any amended Prospectus
has been filed, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (v) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose or (vi) any request made by
the Commission or any securities authority of any other jurisdiction for
amending the Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order or suspension and, if any such
stop order or suspension is issued, to obtain the withdrawal thereof as promptly
as possible.
10
(d) If the delivery of a prospectus relating to the Shares is
required under the Securities Act at any time prior to the expiration of nine
months after the date of the Prospectus and if at such time any events have
occurred as a result of which the Prospectus as then amended or supplemented
would include an 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, or if for any reason
it is necessary during such same period to amend or supplement the Prospectus,
the Company will promptly notify the Underwriter and upon its request (but at
the Company's expense) prepare and file with the Commission an amendment or
supplement to the Prospectus that corrects such statement or omission or effects
such compliance and will furnish without charge to the Underwriter and to any
dealer in securities as many copies of such amended or supplemented Prospectus
as the Underwriter may from time to time reasonably request.
(e) The Company will promptly from time to time take or cause to
be taken in cooperation with the Underwriter and counsel to the Underwriter all
actions required in qualifying or registering the Shares for sale under the blue
sky laws of such jurisdictions as the Underwriter may reasonably designate,
provided the Company shall not be required to qualify generally as a foreign
corporation or as a dealer in securities or to consent generally to the service
of process under the law of any such state (except with respect to the offering
and sale of the Shares), and will continue such qualifications or registrations
in effect so long as reasonably requested by the Underwriter to effect the
distribution of the Shares (including, without limitation, compliance with all
undertakings given pursuant to such qualifications or registrations). In each
jurisdiction where any of the Shares shall have been qualified as provided
above, the Company will file such reports and statements as may be required to
continue such qualification for a period of not less than one (1) year from the
date of this Agreement.
(f) Upon request, the Company will promptly provide the
Underwriter, without charge, (i) two manually executed copies of the
Registration Statement as originally filed with the Commission and of each
amendment thereto, including all exhibits and all documents or information
incorporated by reference therein and (ii) so long as a prospectus relating to
the Shares is required to be delivered under the Securities Act, as many copies
of each Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request.
(g) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
security holders an earnings statement of the Company and its subsidiaries, if
any, covering a period of at least 12 months beginning after the effective date
of the Registration Statement (which need not be audited) complying with Section
11(a) of the Securities Act and the rules and regulations thereunder.
"Availability Date" means the forty-fifth (45th) day after the end of the fourth
fiscal quarter following the fiscal quarter in which the Registration Statement
went effective, except that if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "Availability Date" means the ninetieth (90th) day
after the end of such fourth fiscal quarter.
(h) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
the Company will not, and will cause its officers and directors and those of its
direct and indirect subsidiaries not to, without the prior written consent of
the Underwriter, directly or indirectly (i) offer, sell, contract to sell or
otherwise dispose of, any shares of Common Stock or securities convertible into
or exercisable or exchangeable for shares of Common Stock or (ii) enter into any
swap or other agreement or any transaction that transfers, in whole or in part,
the economic consequences of ownership of shares of Common Stock whether any
such swap or other agreement is to be settled by delivery of shares of Common
Stock, other securities, cash or otherwise; except for the sale of the Shares
hereunder, except for the issuance of Common Stock upon the exercise of stock
options or warrants or the conversion of convertible securities outstanding on
the date of this Agreement or to the extent that such stock options, warrants
and convertible securities are disclosed in the
11
Prospectus and except for the grant to employees of stock options to purchase
Common Stock which are not exercisable within such 180 days.
(i) The Company will furnish to its security holders annual
reports containing financial statements audited by independent public
accountants. During the period ending three (3) years after the effective date
of the Registration Statement, (i) as soon as practicable after the end of the
fiscal year, the Company will furnish to the Underwriter, without charge, two
copies of the annual report of the Company containing the audited consolidated
balance sheet of the Company as of the close of such fiscal year and
corresponding audited consolidated statements of earnings, stockholders' equity
and cash flows for the year then ended, and (ii) the Company will file promptly
and will make available to the Underwriter concurrently with the filing thereof
copies of all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act. During such three-year period, the Company will
also make available or furnish, as applicable, to the Underwriter one copy of
the following:
(i) as soon as practicable after the filing thereof, each
other report, statement or other document filed by the Company with the
Commission;
(ii) as soon as practicable after the filing thereof, all
reports, statements, other documents and financial statements furnished by the
Company to Nasdaq pursuant to requirements of or agreements with Nasdaq;
(iii) as soon as available, each report, statement or other
document of the Company mailed to its stockholders.
(j) Neither the Company nor any of its officers, directors or
affiliates shall, at any time, directly or indirectly, (i) take any action
intended to cause or result in, or which might reasonably be expected to cause
or result in, or which will constitute, stabilization or manipulation, under the
Securities Act or otherwise, of the price of the shares of Common Stock or (ii)
sell, bid for, purchase or pay anyone any compensation for soliciting purchases
of, the Shares.
(k) In case of any event, at any time within the period during
which a prospectus is required to be delivered under the Securities Act, as a
result of which any Preliminary Prospectus or the Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact, or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, or, if it
is necessary at any time to amend any Preliminary Prospectus or the Prospectus
to comply with the Securities Act or any applicable securities or blue sky laws,
the Company promptly will prepare and file with the Commission, and any
applicable state securities commission, an amendment, supplement or document
that will correct such statement or omission or effect such compliance and will
furnish to the several Underwriters such number of copies of such amendment(s),
supplement(s) or document(s) as the Underwriter may reasonably request. For
purposes of this subsection (k), the Company will provide such information to
the Underwriter, the Underwriter's counsel and counsel to the Company as shall
be necessary to enable such persons to consult with the Company with respect to
the need to amend or supplement the Registration Statement, any Preliminary
Prospectus or the Prospectus or file any document, and shall furnish to the
Underwriter and the Underwriter's counsel such further information as each may
from time to time reasonably request.
(l) The Company will use its best efforts to obtain, and
thereafter maintain, the qualification or listing of the shares of Common Stock
(including, without limitation, the Shares) on the Nasdaq National Market
System.
12
(m) At the request of the Underwriter, the Company shall file a
Rule 462(b) registration statement with the Commission in compliance with Rule
462(b) of the Securities Act and the Company shall sell any and all such shares
registered thereunder to the Underwriter at the Per Share Price and otherwise in
accordance with the terms of this Agreement.
(n) Except as contemplated by the Prospectus, the Company and its
subsidiaries will not, prior to the Option Closing Date or thirty (30) days
after the date of this Agreement, whichever occurs first, without the prior
consent of the Underwriter, incur any material liability or obligation, direct
or contingent, or enter into any material transaction, other than in the
ordinary course of business, or any transaction with a related party which is
required to be disclosed in the Prospectus.
(o) The Company will use its best efforts to satisfy or cause to
be satisfied the conditions to the obligations of the Underwriter in Section 7
hereof.
6. Expenses and Fees.
(a) The Company will pay all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, whether or
not the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including, without limitation, all
costs and expenses incident to (i) the printing of and mailing expenses
associated with the Registration Statement, any Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto, this Agreement, the Dealer
Agreement and related documents (collectively, the "Underwriting Documents") and
the preliminary blue sky memorandum relating to the offering prepared by Xxxxxxx
Spidi & Xxxxx, PC, counsel to the Underwriter (collectively with any supplement
thereto, the "Preliminary Blue Sky Memorandum"); (ii) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and all other expenses in
connection with the preparation and, if applicable, filing of the Registration
Statement (including all amendments thereto), any Preliminary Prospectus, the
Prospectus and any amendments and supplements thereto, the Underwriting
Documents and the Preliminary Blue Sky Memorandum; (iii) the delivery of copies
of the foregoing documents to the Underwriter; (iv) the filing fees of the
Commission and the NASD relating to the Shares; (v) the preparation, issuance
and delivery to the Underwriter of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (vi) all transfer taxes, if
any; (vii) the qualification of the Shares for offering and sale under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriter (and local counsel therefor) relating thereto;
(viii) any listing of the Shares on the Nasdaq National Market System; (ix) any
expenses for travel, lodging and meals incurred by the Company and any of its
officers, directors and employees in connection with any meetings with
prospective investors in the Shares; and (x) all other costs and expenses
reasonably incident to the performance of the Company's obligations hereunder
that are not otherwise specifically provided for in this Section 6.
(b) The Underwriter will pay its own expenses, including the fees
of their counsel (except as provided in Section 6(a)(vii) hereof), public
advertisement of the offering and their own marketing and due diligence
expenses.
7. Conditions of the Underwriter's Obligations. The obligations
of the Underwriter hereunder to purchase and pay for the Shares shall be subject
to the accuracy of the representations and warranties of the Company set forth
herein as of the Closing Date and any Option Closing Date, as the case may be,
to the accuracy of the statements of the Company's directors and officers, to
the performance by the Company of its obligations hereunder and to the following
additional conditions, except to the extent expressly waived in writing by the
Underwriter:
13
(a) If the registration statement as amended to date has not
become effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 11:00 a.m.,
Washington, DC time, on the date of this Agreement or such later date and/or
time as shall have been consented to by the Underwriter in writing. If required,
the Prospectus and any amendment or supplement thereto shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing and in accordance with Section 5(a) of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted, threatened or, to the knowledge of the
Company and the Underwriter, contemplated by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Underwriter's satisfaction.
(b) The Underwriter shall have received a copy of an executed
lock-up agreement from the Company and each of the Company's and its direct and
indirect subsidiaries' executive officers and directors and certain shareholders
of Common Stock, in the form attached hereto as Exhibit A.
(c) The Underwriter shall have received an opinion, dated as of
the Closing Date and any Option Closing Date, of Xxxxx XxxXxxxxx, P.A., special
counsel for the Company, in form and substance satisfactory to the Underwriter
and its counsel, to the effect that:
(i) Each of the Company and its direct and indirect
subsidiaries has been duly incorporated or organized, is validly existing as a
corporation or banking association in good standing under the laws of its
jurisdiction of incorporation or organization and has full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus. The Company is duly registered under the Bank
Holding Company Act of 1956, as amended. The Company has full power and
authority (corporate and other) to enter into this Agreement and to perform its
obligations hereunder. No proceeding has been instituted in any jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority.
(ii) All of the issued shares of capital stock of the
Company, including the Shares to be sold by the Company pursuant hereto when
delivered against payment therefor as contemplated hereby, have been duly
authorized and validly issued, are fully paid and nonassessable and conform to
the descriptions of the Common Stock contained in the Prospectus, and the
holders thereof will not be subject to personal liability solely by reason of
being such holders. None of the issued shares of capital stock of the Company or
any of its direct or indirect subsidiaries has been issued or is owned or held
in violation of any statutory or other preemptive rights of shareholders, and no
person or entity (including any holder of outstanding shares of capital stock of
the Company or its direct or indirect subsidiaries) has any statutory or other
preemptive or other rights to subscribe for any of the Shares. None of the
capital stock of the Company has been issued in violation of applicable federal
or state securities laws. The certificates representing the Shares are in proper
legal form under, and conform in all respects to the requirements of, the
Florida Business Corporation Act and the requirements of the Nasdaq National
Market System.
(iii) All of the issued shares of capital stock of each of
the Company's direct and indirect subsidiaries, specifically the Bank, have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company or one of its subsidiaries, free and clear of
all liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting agreements, proxies, voting trusts, equities or
claims of any nature whatsoever (collectively, "Encumbrances"), including,
without limitation, any Encumbrance arising or resulting from any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement of or entered
into by the Company or the Bank. Other than the outstanding capital stock of the
Bank and the equity securities held in the investment portfolios of the Company
and such subsidiaries (the composition of which is not
14
materially different from the disclosures in the Prospectus as of specific
dates), the Company does not own, directly or indirectly, any capital stock or
other equity securities of any other corporation or any ownership interest in
any partnership, joint venture or other association.
(iv) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or any of its direct or
indirect subsidiaries convertible into or exchangeable for any capital stock of
the Company or any of its direct or indirect subsidiaries, (ii) warrants, rights
or options to subscribe for or purchase from the Company or any of its direct or
indirect subsidiaries any such capital stock or any such convertible or
exchangeable securities or obligations or (iii) obligations of the Company or
any of its direct or indirect subsidiaries to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(v) There are no contracts, agreements or understandings
known to such counsel between the Company and any person granting such person
the right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or requiring the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any such right
has been effectively waived) or requiring the registration of any securities
pursuant to any other registration statement filed by the Company under the
Securities Act. Neither the filing of the Registration Statement nor the
offering or sale of Shares as contemplated by this Agreement gives any security
holder of the Company any rights for or relating to the registration of any
shares of Common Stock or any other capital stock of the Company, except such
that have been satisfied or waived.
(vi) The sale of the Shares and the performance of this
Agreement and the consummation of the transactions herein contemplated will not
(with or without the giving of notice or the passage of time or both) (i)
conflict with or violate any term or provision of the Articles of Incorporation
or By-Laws or comparable charter documents of the Company or any of its direct
or indirect subsidiaries, in each case as amended to date, (ii) result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its direct or
indirect subsidiaries is a party or to which any of their respective properties
or assets is subject, (iii) conflict with or violate any law, statute, rule or
regulation or any order, judgment or decree of any court or governmental agency
or body having jurisdiction over the Company or any of its direct or indirect
subsidiaries or any of their respective properties or assets or (iv) result in a
breach, termination or lapse of the corporate power and authority of the Company
or any of its direct or indirect subsidiaries to own or lease and operate their
respective assets and properties and conduct their respective business as
described in the Prospectus.
(vii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with, any court
or governmental agency or body is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except the
registration of the Shares under the Securities Act and of the Common Stock
under the Exchange Act and such as may be required by the NASD or under state
securities or blue sky laws in connection with the offer, sale and distribution
of the Shares by the Underwriter.
(viii) To such counsel's knowledge and other than as
disclosed in the Prospectus, there is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation (including without limitation,
any bank or bank holding company regulatory proceeding) pending or threatened in
which the Company or any of its direct or indirect subsidiaries is a party or of
which any of their respective properties or assets are the subject which, if
determined adversely to the Company or any of its direct or indirect
subsidiaries, would individually or in the aggregate have a material adverse
effect on the
15
condition (financial or otherwise), business, prospects, assets, properties,
results of operations or net worth of the Company and its subsidiaries taken as
a whole. Neither the Company nor any direct or indirect subsidiary is in
violation of, or in default with respect to, any law, statute, rule, regulation,
order, judgment or decree, except as described in the Prospectus or such as do
not and will not individually or in the aggregate have a material adverse effect
on the condition (financial or otherwise), business, prospects, assets,
properties, results of operations or net worth of the Company and its
subsidiaries taken as a whole, and neither the Company nor any direct or
indirect subsidiary is required to take any action in order to avoid any such
violation or default.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the Underwriter,
constitutes the valid and binding agreement of the Company, enforceable against
the Company, in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights generally and
to general equitable principles and except as the enforceability of rights to
indemnity and contribution under this Agreement may be limited under applicable
securities laws or the public policy underlying such laws.
(x) Neither the Company nor any of its direct or indirect
subsidiaries is, or with the giving of notice or passage of time or both would
be, in violation of its Articles of Incorporation or By-Laws (or comparable
charter documents).
(xi) The Bank is a member in good standing of the Federal
Home Loan Bank System and its deposits are insured by the Federal Deposit
Insurance Corporation up to the legal limits.
(xii) Neither the Company nor any of its direct or indirect
subsidiaries is an "investment company" or a company "controlled" by an
investment company as such terms are defined in Sections 3(a) and 2(a)(9),
respectively, of the Investment Company Act, and, if the Company or any of its
direct or indirect subsidiaries conducts its business as set forth in the
Registration Statement and the Prospectus, will not become an "investment
company" and will not be required to register under the Investment Company Act.
(xiii) The Registration Statement and the Prospectus and
each amendment or supplement thereto (other than the financial statements, the
notes and schedules thereto and other financial data included therein, to which
such counsel need express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the requirements of the
Securities Act and the respective rules and regulations thereunder.
(xiv) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such opinion, and
no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings therefor have been
initiated or, to such counsel's knowledge, threatened by the Commission.
Such counsel shall also state that they have participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, the Underwriter and counsel to
the Underwriter at which the contents of the Registration Statement, the
Prospectus and related matters were discussed and nothing has come to such
counsel's attention to lead them to believe that the Registration Statement, or
any further amendment thereto made prior to the Closing Date or Option Closing
Date, as applicable, on its effective date and as of the Closing Date or Option
Closing Date, as applicable, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein, not misleading, or
16
that the Prospectus, or any amendment or supplement thereto made prior to the
Closing Date or Option Closing Date, as applicable, as of its issue date and as
of Closing Date or Option Closing Date, as applicable, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes and
schedules thereto and other financial data contained in the Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of officers of
the Company, public officials and letters from officials of the NASD. Copies of
such certificates of officers of the Company and other opinions shall be
addressed and furnished to the Underwriter and furnished to counsel for the
Underwriter.
(d) Xxxxxxx Spidi & Xxxxx, PC, counsel for the Underwriter, shall
have furnished to the Underwriter such opinion or opinions, dated as of the
Closing Date and any Option Closing Date, with respect to such matters as the
Underwriter may reasonably request, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Underwriter shall have received from Xxxxx, Xxxxxx and
Company LLC, independent public accountants, in form and substance satisfactory
to the Underwriter, letters dated as of the date hereof, the Closing Date and
any Option Closing Date, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to Underwriter with
respect to the financial statements and certain financial information contained
in the Registration Statement and Prospectus; provided that the letter dated as
of the date of delivery of the Firm Shares shall use a "cut-off date" not
earlier than the date hereof.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor any of its direct or
indirect subsidiaries shall have sustained any material adverse change, or any
development involving a prospective material adverse change (including, without
limitation, a change in management or control of the Company), in or affecting
the position (financial or otherwise), results of operations, net worth or
business prospects of the Company or its direct or indirect subsidiaries,
otherwise than as disclosed in or contemplated by the Prospectus, the effect of
which, in either such case, in the Underwriter's reasonable judgment makes it
impracticable or inadvisable to proceed with the purchase, sale and delivery of
the Shares being delivered at the Closing Date or any Option Closing Date as
contemplated by the Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof, there shall not have occurred
any of the following:
(i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange, The Nasdaq National Market and/or the
American Stock Exchange or any setting of minimum or maximum prices for trading
on such exchange;
(ii) any suspension of or limitation in trading in the
Common Stock of the Company by the Commission or The Nasdaq National Market;
(iii) a general moratorium on commercial banking activities
declared by either Federal, New York or Florida authorities;
(iv) any material adverse change, or any development
involving a prospective material adverse change, in the ability of the Company
or any of its direct or indirect subsidiaries to conduct their respective
businesses (whether by reason of any court, legislative, other governmental
17
action, order, decree or otherwise), or in the general affairs, condition
(financial or otherwise), business, prospects, properties, management, financial
position or earnings, results of operations or net worth of the Company or any
of its direct or indirect subsidiaries, whether or not arising from transactions
in the ordinary course of business; or
(v) a loss material or substantial to the Company or any
of its direct or indirect subsidiaries by reason of labor dispute, strike,
flood, fire, accident, hurricane, earthquake, theft, sabotage or other calamity
or malicious act, whether or not such loss shall have been insured, or from any
court or governmental action, order or decree, or any material adverse change in
the financial or securities markets in the United States or in political,
financial or economic conditions or the United States or any outbreak or
escalation of hostilities involving the United States, declaration by the United
States of a national emergency or war or any other national or international
calamity, crisis or emergency if the effect of any such event specified in this
clause (v) is in the reasonable opinion of the Underwriter so material and
adverse as to make it impracticable or inadvisable to proceed with the offering
or the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and the Prospectus.
(h) The Company shall have furnished to the Underwriter on the
Closing Date and the Option Closing Date, a certificate, satisfactory to the
Underwriter, signed by the chief executive officer or an executive vice
president and the chief financial officer of the Company, dated as of the
Closing Date or the Option Closing Date, as the case may be, to the effect that
the signers of such certificate have carefully examined the Registration
Statement and this Agreement and that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as of the
Closing Date and the Option Closing Date, as the case may be, with the same
effect as if made on the Closing Date or the Option Closing Date, as the case
may be, and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions on its part
to be performed or satisfied at or prior to the Closing Date or the Option
Closing Date, as the case may be;
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or any
amendment thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the knowledge of the respective
signatories, no proceeding for that purpose has been instituted or is pending or
contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate
has carefully examined the Registration Statement, the Prospectus and any
amendments or supplements thereto, and such documents contain all material
statements and information required to be made therein, and neither the
Registration Statement nor any amendment nor supplement thereto includes any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
and, since the date on which the Registration Statement was initially filed, no
event has occurred that was required to be set forth in an amended or
supplemented prospectus or in an amendment to the Registration Statement that
has not been so set forth; provided, however, that no representation need be
made as to information contained in or omitted from the Registration Statement
or any amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter; and
(iv) Since the date on which the Registration Statement
was initially filed with the Commission, there has not been any material adverse
change or a development involving a prospective material adverse change in the
business, properties, financial condition, or earnings of the Company and
18
its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as disclosed in the Registration
Statement as heretofore amended or (but only if the Representatives expressly
consent thereto in writing) as disclosed in an amendment or supplement thereto
filed with the Commission and delivered to the Underwriter after the execution
of this Agreement; since such date and except as so disclosed or in the ordinary
course of business, neither the Company nor any of its direct or indirect
subsidiaries has incurred any liability or obligation, direct or indirect, or
entered into any transaction that is material to the Company or such direct or
indirect subsidiaries, as the case may be, not contemplated in the Prospectus;
since such date and except as so disclosed there has not been any change in the
outstanding capital stock of the Company, or any change that is material to the
Company and its subsidiaries taken as a whole in the short-term debt or
long-term debt of the Company or any of its subsidiaries; since such date and
except as so disclosed, neither the Company nor any of its subsidiaries have
incurred any material contingent obligations, and no material litigation is
pending or threatened against the Company or any of its subsidiaries; and, since
such date and except as so disclosed, neither the Company nor any of its
subsidiaries have sustained any material loss or interference from any strike,
fire, flood, windstorm, accident or other calamity (whether or not insured) or
from any court or governmental action, order, or decree.
(i) The representations and warranties of the Company in this
Agreement and in the certificates delivered by the Company pursuant to this
Agreement shall be true and correct in all material respects when made and on
and as of the Closing Date and the Option Closing Date, as if made at such time,
and the Company shall have performed all covenants and agreements and satisfied
all conditions contained in this Agreement required to be performed or satisfied
by the Company on or before the Closing Date or Option Closing Date, as the case
may be.
(j) The Shares shall have been registered for sale, or subject to
an available exemption from such registration, under the blue sky laws of such
jurisdictions as shall have been reasonably specified by the Underwriter.
(k) The Shares shall have been approved for quotation in the
Nasdaq National Market System.
(l) Prior to the Closing Date and any Option Closing Date, the
Company shall have furnished to the Underwriter such further information,
certificates and documents as the Underwriter may reasonably request in
connection with the offering of the Shares.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time without liability on the
part of the Underwriter or the Company, except for expenses to be paid by the
Company pursuant to Section 6 hereof or reimbursed by the Company pursuant to
Section 9 and except to the extent provided in Section 8.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter against any losses, claims, damages, liabilities or expenses, as
incurred, to which the Underwriter may become subject under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation), insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement made by the Company in Section 1 of this Agreement; (ii) any
untrue statement or alleged untrue statement of any material fact contained in
(A) the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or
19
supplement thereto, or (B) any application or other document, or amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange (each an
"Application"); or (iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or any Application, a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability, expense or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein (which information is solely as set forth in Section 1(c) hereof). The
Company will not, without the prior written consent of the Underwriter, which
shall not be unreasonably withheld, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
(or related cause of action or portion thereof) in respect of which
indemnification may be sought hereunder (whether or not the Underwriter is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of the Underwriter from
all liability arising out of such claim, action, suit or proceeding (or related
cause of action or portion thereof).
(b) The Underwriter agrees to indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject under the Securities Act 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 any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or any Application 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
expressly for use therein (which information is solely as set forth in Section
1(c) hereof); and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under such subsection
(a) or (b). In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the
20
defense of such action on behalf of such indemnified party and such indemnified
party shall have the right to select separate counsel to defend such action on
behalf of such indemnified party. After such notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such action,
the indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. Nothing in this Section 8(c) shall preclude an
indemnified party from participating at its own expense in the defense of any
such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other hand from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriter on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriter agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include 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 subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
received by it, and 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. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this subsection (d), will notify any
such party or parties from whom contribution may be sought, but the omission so
to notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this subsection (d).
No party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent shall not be unreasonably
withheld).
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
employee of the Underwriter and to each person, if any, who controls the
Underwriter within the meaning of the Securities Act or the Exchange Act; and
the obligations of the
21
Underwriter under this Section 8 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act.
9. Termination. This Agreement may be terminated in the sole
discretion of the Underwriter by notice to the Company given prior to the
Closing Date, and the option from the Company referred to in Section 2, if
exercised, may be canceled by the Underwriter at any time prior to the Option
Closing Date, in the event that (a) any condition to the obligations of the
Underwriter set forth in Section 7 hereof has not been satisfied or (b) the
Company shall have failed, refused or been unable to deliver Certificates in
definitive form for the Shares or the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, or Option
Closing Date, as the case may be, in either case other than by reason of a
default by the Underwriter. If this Agreement is terminated pursuant to this
Section 9, the Company will reimburse the Underwriter upon demand for all
reasonable out-of-pocket expenses (including counsel fees and disbursements)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Shares. Any termination pursuant to this Section 9 shall be
without liability on the part of the Underwriter to the Company or on the part
of the Company to any Underwriter (except for expenses to be paid by the Company
pursuant to Section 6 hereof or reimbursed by the Company pursuant to this
Section 9 and except as to indemnification and contribution to the extent
provided in Section 8 hereof).
10. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its directors
and officers and the Underwriter, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of the Underwriter or any controlling
person referred to in Section 8(e) or the Company, or any officer or director or
controlling person of the Company referred to in Section 8(e), and shall survive
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
11. Notices. All communications hereunder shall be in writing and,
if sent to the Underwriter, shall be sufficient in all respects if mailed,
delivered or telegraphed and confirmed in writing to Advest, Inc., Xxx
Xxxxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxx (with a copy to Xxxxxxx Spidi & Xxxxx, PC, 0000 Xxx Xxxx Xxxxxx, XX, Xxxxx
000 Xxxx, Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Spidi, Esq.); if to the
Company, shall be sufficient in all respects if mailed, delivered or telegraphed
and confirmed in writing to TIB Financial Corp., 00000 Xxxxxxxx Xxxxxxx, Xxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx (with a copy to Xxxxx XxxXxxxxx,
PA, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxxx,
Esq.).
12. Binding Effect. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriter, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers, directors and employees and
controlling persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
13. Partial Unenforceability. If any section, subsection, clause
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause or provision hereof.
22
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. Entire Agreement. This Agreement embodies the entire agreement
among the parties hereto with respect to the transactions contemplated herein,
and other than the Letter of Intent between the Company and the Underwriter,
there have not been and are no agreements among the parties with respect to such
transactions other than as set forth or provided for herein.
16. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and this
letter will constitute a binding agreement between the Underwriter and the
Company.
Very truly yours,
TIB FINANCIAL CORP.
By:
--------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above at New York, New York.
ADVEST, INC.
By:
-------------------------
Name:
Title:
24
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
TIB FINANCIAL CORP.
LOCK-UP AGREEMENT
_______, 2004
Advest, Inc.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you, Advest, Inc. (the "Underwriter"),
propose to enter into an underwriting agreement (the "Underwriting Agreement")
with TIB Financial Corp. (the "Company") providing for the public offering (the
"Public Offering") by the Underwriter of common stock of the Company (the
"Common Stock") pursuant to the Company's Registration Statement on Form S-3
(the "Registration Statement").
In consideration of the Underwriting Agreement to purchase and make the
Public Offering of the Common Stock, and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby
agrees, for a period of 180 days after the effective date of the Registration
Statement (the "Lock-Up Period"), not to sell, offer to sell, solicit an offer
to buy, contract to sell, encumber, distribute, pledge, grant any option for the
sale of, or otherwise transfer or dispose of, directly or indirectly, in one or
a series of transactions (collectively, a "Disposition"), any shares of Common
Stock or any securities convertible or exercisable into or exchangeable for
shares of Common Stock (collectively, "Securities"), now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has
acquired or hereafter acquires the power of disposition, without the prior
written consent of the Underwriter. Prior to the expiration of the Lock-Up
Period, the undersigned agrees that it will not announce or disclose any
intention to do anything after the expiration of such period which the
undersigned is prohibited, as provided in the preceding sentence, from doing
during the Lock-Up Period. In addition, for the benefit of the Company and the
Underwriter, the undersigned hereby (i) waives any right it may have to cause
the Company to register pursuant to the Securities Act of 1933, as amended, any
shares of Common Stock now owned or hereafter acquired or received by the
undersigned as a result of the Public Offering and (ii) during the Lock-Up
Period, agrees not to exercise any such registration rights and further agrees
that the Company shall not be obligated to register any shares in violation of
the Underwriting Agreement.
The undersigned acknowledges and agrees that the restrictions above are
expressly agreed to preclude the holder of the Securities from engaging in any
hedging or other transaction which is designed to or reasonably expected to lead
to or result in a Disposition of Securities (or the economic equivalent thereof)
during the Lock-Up Period even if such Securities would be disposed of by
someone other than the undersigned. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value
25
from the Securities.
The undersigned hereby also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent against the transfer of
the Securities held by the undersigned except in compliance with the Lock-Up
Agreement.
It is understood that, if the Underwriting Agreement is not executed,
or if the Underwriting Agreement shall terminate or be terminated prior to
payment for and delivery of the Common Stock the subject thereof, this Lock-Up
Agreement shall automatically terminate and be of no further force or effect.
This Lock-Up Agreement shall be governed by and construed in accordance
with the laws of the State of New York (without giving effect to its conflict of
laws provisions).
Very truly yours,
----------------------
Name:
26
