Exhibit 3.2
FLORIDA SAVINGS BANCORP, INC.
$_____________
4% CONVERTIBLE DEBENTURE
THIS DEBENTURE is one of a series of duly authorized and issued
debentures of Florida Savings Bancorp, Inc., a Florida corporation, having a
principal place of business at 8181 Southwest 117th Street, Pinecrest, Florida
33156 (the "COMPANY"), designated as its 4% Convertible Debentures, due March
31, 2009, in the aggregate principal amount of ________________ Million Dollars
($___________________________) (the "DEBENTURES").
FOR VALUE RECEIVED, the Company promises to pay to ___________________
or its registered assigns (the "HOLDER"), the principal sum of ________________
Dollars ($____________), on March 31, 2009 or such earlier date as the
Debentures are required or permitted to be repaid as provided hereunder (the
"MATURITY DATE") and to pay interest to the Holder on the aggregate unconverted
and then outstanding principal amount of this Debenture at the rate of 4% per
annum, accruing from the Original Issue Date (as defined in Section 5), payable
on _________________ and ________________________ of each year (each an
"INTEREST PAYMENT DATE") in arrears commencing on _____________________________,
2003. Interest shall be calculated on the basis of a 360-day year comprised of
twelve 30-day months and shall accrue daily commencing on the Original Issue
Date (as defined in Section 5) until payment in full of the principal sum,
together with all accrued and unpaid interest and other amounts which may become
due hereunder, has been made. Interest hereunder will be paid to the Person (as
defined in Section 5) in whose name this Debenture is registered on the records
of the Company regarding registration and transfers of Debentures (the
"DEBENTURE REGISTER") at the close of business on the regular record date for
such interest installment, which shall be at the close of business on the first
day of the month immediately preceding the month in which the relevant Interest
Payment Date falls (each a "RECORD DATE"). In the event that the principal
amount of this Debenture is not paid in full when such amount becomes due and
payable, interest at the rate 4.0% per annum shall continue to accrue on the
balance of any unpaid principal until such balance is paid.
This Debenture is subject to the following additional provisions:
SECTION 1
EVENTS OF DEFAULT
(a) "EVENT OF DEFAULT", wherever used herein, means any one of the
following events (whatever the reason and whether it shall be voluntary or
involuntary or effected by operation of law or pursuant to any judgment, decree
or order of any court, or any order, rule or regulation of any administrative or
governmental body):
(i) any default in the payment of the principal of or interest on
in respect of this Debenture as and when the same shall become due and payable
(whether on a Conversion
Date or the Maturity Date or by acceleration or otherwise) provided such default
is not cured by the Company within ten (10) days after the due date thereof;
(ii) the Company or any of its subsidiaries shall commence, or
there shall be commenced against the Company or any such subsidiary a case under
any applicable bankruptcy or insolvency laws as now or hereafter in effect or
any successor thereto, or the Company commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Company or any subsidiary thereof or there
is commenced against the Company or any subsidiary thereof any such bankruptcy,
insolvency or other proceeding which remains undismissed for a period of 90
days; or the Company or any subsidiary thereof is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Company or any subsidiary thereof suffers any
appointment of any custodian or the like for it or any substantial part of its
property which continues undischarged or unstayed for a period of 90 days; or
the Company or any subsidiary thereof makes a general assignment for the benefit
of creditors; or the Company shall fail to pay, or shall state that it is unable
to pay, or shall be unable to pay, its debts generally as they become due; or
the Company or any subsidiary thereof shall call a meeting of its creditors with
a view to arranging an adjustment or restructuring of its debts; or the Company
or any subsidiary thereof shall by any act or failure to act expressly indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate or other action is taken by the Company or any subsidiary thereof for
the purpose of effecting any of the foregoing;
(iii) the Company shall default in any of its obligations
under any other Debenture or any mortgage, credit agreement or other facility,
indenture agreement, factoring agreement or other instrument under which there
may be issued, or by which there may be secured or evidenced any indebtedness
for borrowed money or money due under any long term leasing or factoring
arrangement of the Company in an amount exceeding $1,000,000, whether such
indebtedness now exists or shall hereafter be created and such default shall
result in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable; or
(iv) the Company shall fail for any reason to deliver
certificates to a Holder prior to the fifth Business Day (as defined in Section
5) after a Conversion Date pursuant to and in accordance with Section 2(b) or
the Company shall provide notice to the Holder, including by way of public
announcement, at any time, of its intention not to comply with requests for
conversions of any Debentures in accordance with the terms hereof.
(b) If any Event of Default occurs and is continuing, the full
principal amount of this Debenture (and, at the Holder's option, all other
Debentures then held by such Holder), together with interest and other amounts
owing in respect thereof, to the date of acceleration shall become at the
Holder's election and by notice in writing to the Company, immediately due and
payable in cash.
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SECTION 2
CONVERSION
(a) (i) CONVERSION GENERALLY. This Debenture shall be convertible
into shares of Common Stock at the option of the Holder, in whole or in part at
any time beginning one year after the Original Issue Date (subject to the
limitations on conversion set forth in Section 2(a)(v) hereof). The Holder shall
effect conversions at its option by delivering to the Company this Debenture and
the form of conversion notice attached hereto as EXHIBIT A (a "HOLDER CONVERSION
NOTICE"), specifying therein the principal amount of Debentures to be converted
and containing a schedule in the form of SCHEDULE 1 to the Holder Conversion
Notice (as amended on each Conversion Date, as defined hereafter, the
"CONVERSION SCHEDULE") reflecting the remaining principal amount of this
Debenture and all accrued and unpaid interest thereon subsequent to the
conversion at issue. The Conversion Date shall mean the date each conversion
will be deemed to have been effected, which shall be as of the close of business
on the day on which the related Holder Conversion Notice and Debenture was
received by the Company. Each Holder Conversion Notice, once given, shall be
irrevocable. Conversions hereunder shall have the effect of lowering the
outstanding principal amount of this Debenture plus all accrued and unpaid
interest thereon in an amount equal to the applicable conversion, which shall be
evidenced by entries set forth in the Conversion Schedule. The Holder and the
Company shall maintain records showing the principal amount converted and the
date of such conversions. The Holder and any assignee, by acceptance of this
Debenture, acknowledge and agree that, by reason of the provisions of this
paragraph, following conversion of a portion of this Debenture, the unpaid and
unconverted principal amount of this Debenture may be less than the amount
stated on the face hereof. In case a Debenture or portion thereof is called for
redemption, such conversion right in respect to the Debenture or portion so
called shall expire at the close of business on the Business Day immediately
preceding the corresponding date of redemption, unless the Company defaults in
making the payment due upon redemption.
(ii) NUMBER OF UNDERLYING SHARES ISSUABLE UPON CONVERSION. The
Debentures are convertible into fully paid and nonassessable shares of Common
Stock at an initial conversion ratio of 90.91 shares of Common Stock for each
$1,000 in aggregate principal amount of Debentures (equal to an initial
conversion price of $11.00 per share of Common Stock (the "CONVERSION PRICE")),
subject to adjustment as described in this Section 2 (the "CONVERSION RATIO"). A
Holder may convert any portion of the principal amount of the Debentures into
that number of fully paid and nonassessable shares of Common Stock obtained by
multiplying (x) the quotient obtained by dividing the principal amount of the
Debentures to be converted by $1,000 by (y) the Conversion Ratio.
(iii) CERTAIN CONVERSION RESTRICTIONS. A Holder, other than
Bernard Janis or the Andrea Green 1991 Irrevocable Trust, may not convert
Debentures to the extent such conversion would result in the Holder, together
with any affiliate thereof, beneficially owning in excess of 10% of the then
issued and outstanding shares of Common Stock, including shares issuable upon
conversion of the Debentures held by such Holder. If the Holder has delivered a
Conversion Notice for a principal amount of Debentures that, without regard to
any
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other shares that the Holder or its affiliates may beneficially own, would
result in the issuance in excess of the permitted amount hereunder, the Company
shall notify the Holder of this fact and shall honor the conversion for the
maximum principal amount permitted to be converted (or any portion of the
maximum principal amount permitted to be converted that is an integral multiple
of $1,000) on such Conversion Date in accordance with the periods described in
Section 2(b) and, at the option of the Holder, either retain any principal
amount tendered for conversion in excess of the permitted amount hereunder for
future conversions or return such excess principal amount to the Holder.
(b) (i) DELIVERY OF STOCK CERTIFICATES. Prior to the fifth Business
Day after any Conversion Date, the Company will issue and deliver to the Holder
a certificate or certificates representing the number of shares of Common Stock
being acquired upon the conversion of Debentures (together with the cash
payment, if any, in lieu of fractional shares) and the Company will return to
the Holder this Debenture.
(ii) FRACTIONAL SHARES. No fractional shares of Common Stock
shall be issued as a result of conversion, but in lieu thereof, the Company
shall pay to the Holder a cash adjustment in an amount equal to the same
fraction of the Conversion Price on the date on which the Debentures were duly
surrendered to the Company for conversion.
(c) INTEREST PAYMENTS UPON CONVERSION. If any Debentures are converted
during the period after any Record Date but before the next Interest Payment
Date, interest on such Debentures will be paid on the next Interest Payment
Date, notwithstanding such conversion, to the Holder on the Record Date of those
Debentures. If any Debentures are converted after an Interest Payment Date but
on or before the next Record Date, no interest will be paid on those Debentures.
(d) SATISFACTION OF OBLIGATION. The Company's delivery upon conversion
of the fixed number of shares of Common Stock into which the Debentures are
convertible (together with the cash payment, if any, in lieu of fractional
shares) shall be deemed to satisfy the Company's obligation to pay the principal
amount at maturity of the portion of Debentures so converted and, except as set
forth in Section 2(c), any unpaid interest accrued on such Debentures at the
time of such conversion.
(e) CONVERSION RATIO ADJUSTMENTS. The Conversion Ratio shall be
subject to adjustment (without duplication) from time to time as follows:
(i) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) issue by reclassification of its shares of
Common Stock any shares of capital
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stock of the Company, then the Conversion Ratio in effect immediately prior to
such action shall be adjusted so that the holders of any Debentures thereafter
surrendered for conversion shall be entitled to receive the number of shares of
capital stock of the Company which he would have owned immediately following
such action had such Debentures been converted immediately prior thereto. An
adjustment made pursuant to this Section 2(e)(i) shall become effective
immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this Section 2(e)(i), the holder of
any Debenture thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes or series of capital stock of the Company,
the Board of Directors (whose determination shall be conclusive) shall
reasonably determine the allocation of the adjusted Conversion Ratio between or
among shares of such classes or series of capital stock.
(ii) In case the Company shall, while any of the Debentures
are outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned in this Section 2(e)(ii)) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price (as defined
in Section 5) per share of Common Stock on such record date, then the Conversion
Ratio for the Debentures shall be adjusted so that the same shall equal the
ratio determined by multiplying the Conversion Ratio in effect immediately prior
to the date of issuance of such rights or warrants by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such Current Market Price. Such
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights or warrants. For
the purposes of this Section 2(e)(ii), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company. The Company shall not issue any rights or warrants in respect of the
shares of Common Stock held in the treasury of the Company. In case any rights
or warrants referred to in this Section 2(e)(ii) in respect of which an
adjustment shall have been made shall expire unexercised within 45 days after
the same shall have been distributed or issued by the Company, the Conversion
Ratio shall be readjusted at the time of such expiration to the Conversion Ratio
that would have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(iii) Subject to the last sentence of this Section 2(e)(iii),
in case the Company shall, by dividend or otherwise, distribute to all holders
of its Common Stock evidences of its indebtedness, shares of any class or series
of capital stock, cash or assets (including securities, but excluding any rights
or warrants referred to in Section 2(e)(ii), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
2(e)(i)), then the Conversion Ratio shall be increased so that the same shall
equal the ratio determined by multiplying the Conversion Ratio in effect
immediately prior to the effectiveness of the Conversion Ratio increase
contemplated by this Section 2(e)(iii) by a fraction of which the
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numerator shall be the Current Market Price per share of Common Stock on the
date fixed for the payment of such distribution (the "REFERENCE DATE"), and of
which the denominator shall be, the Current Market Price per share of the Common
Stock on the Reference Date less the fair market value (as determined in good
faith by the Board of Directors), on the Reference Date, of the portion of the
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock, such increase to become
effective immediately prior to the opening of business on the day following the
Reference Date. In the event that such dividend or distribution is not so paid
or made, the Conversion Ratio shall again be adjusted to be the Conversion Ratio
which would then be in effect if such dividend or distribution had not occurred.
If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 2(e)(iii) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
Current Market Price per share of Common Stock. For purposes of this Section
2(e)(iii), any dividend or distribution that includes shares of Common Stock or
rights or warrants to subscribe for or purchase shares of Common Stock shall be
deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, shares of capital stock, cash or assets other than such shares of
Common Stock or such rights or warrants (making any Conversion Ratio increase
required by this Section 2(e)(iii)) immediately followed by (2) a dividend or
distribution of such shares of Common Stock or such rights or warrants (making
any further Conversion Ratio increase required by Section 2(e)(i) or 2(e)(ii)),
except (A) the Reference Date of such dividend or distribution as defined in
this Section 2(e)(iii) shall be substituted as (a) "the record date in the case
of a dividend or other distribution," and (b) "the record date for the
determination of shareholders entitled to receive such rights or warrants," and
(c) "the date fixed for such determination" within the meaning of Sections
2(e)(i) and 2(e)(ii), and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the Conversion Ratio in Section 2(e)(i).
(iv) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all cash
dividends paid out of the retained earnings of the Company), then the Conversion
Ratio shall be increased so that the same shall equal the ratio determined by
multiplying the Conversion Ratio in effect immediately prior to the
effectiveness of the Conversion Ratio increase contemplated by this Section
2(e)(iv) by a fraction of which the numerator shall be the Current Market Price
per share of the Common Stock, and of which the denominator shall be the Current
Market Price per share of Common Stock on the date fixed for the payment of such
distribution less the amount of cash so distributed and not excluded as provided
applicable to one share of Common Stock on the date fixed for the payment of
such distribution, such increase to become effective immediately prior to the
opening of business on the day following the date fixed for the payment of such
distribution; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price per share of the Common Stock on the record date
mentioned above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder shall have the right to receive upon conversion the
amount of cash such Holder would have received had such Holder converted each
Debenture immediately prior to the record
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date for the distribution of the cash. In the event that such dividend or
distribution is not so paid or made, the Conversion Ratio shall again be
adjusted to be the Conversion Ratio which would then be in effect if such record
date had not been fixed.
(v) In case a tender or exchange offer (other than an
odd-lot offer) made by the Company or any subsidiary of the Company for all or
any portion of the Common Stock shall expire and such tender or exchange offer
shall involve the payment by the Company or such subsidiary of consideration per
share of Common Stock having a fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution) at the last time (the "EXPIRATION TIME") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended) that exceeds 110% of the Current Market Price per share of
Common Stock on the Business Day next succeeding the Expiration Time, then the
Conversion Ratio shall be increased so that the same shall equal the ratio
determined by multiplying the Conversion Ratio in effect immediately prior to
the effectiveness of the Conversion Ratio increase contemplated by this Section
2(e)(v) by a fraction of which the numerator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares"), and (y) the
product of the number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Current Market Price per share of Common
Stock on the Business Day next succeeding the Expiration Time, and of which the
denominator shall be the number of shares of Common Stock outstanding (including
any Purchased Shares) at the Expiration Time multiplied by the Current Market
Price per share of Common Stock on the Business Day next succeeding the
Expiration Time, such increase to become effective immediately prior to the
opening of business on the day following the Expiration Time.
(vi) The Company may make such reasonable increases in the
Conversion Ratio, in addition to those required by Sections 2(e) (i) through
(v), as it reasonably considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
(vii) No adjustment in the Conversion Ratio shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Ratio; provided, however, that any adjustments which by reason of
this Section 2(e)(vii) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required. The adjusted Conversion Ratio will be rounded to two decimal places.
(viii) If any action would require adjustment of the
Conversion Ratio pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holders.
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(f) RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF ASSETS. In the
event that the Company shall be a party to any transaction, including without
limitation (a) any recapitalization or reclassification of the Common Stock
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination of the
Common Stock), (b) any consolidation of the Company with, or merger of the
Company into any other Person, any merger of another Person into the Company
(other than a merger which does not result in a reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company),
(c) any sale, transfer or lease of all or substantially all of the assets of the
Company, or (d) any compulsory share exchange, in each case pursuant to which
the Common Stock is converted into the right to receive other securities, cash
or other property, then lawful provision shall be made as part of the terms of
such transaction whereby the holder of each Debenture then outstanding shall
have the right thereafter to convert each Debenture only into the kind and
amount of securities, cash or other property receivable upon consummation of
such transaction by a holder of the number of shares of Common Stock of the
Company into which such Debenture could have been converted immediately prior to
such transaction.
The Company or the Person formed by such consolidation or resulting
from such merger or which acquired such assets or which acquires the shares of
the Company, as the case may be, shall make provision in its certificate or
articles of incorporation or other constituent document to establish such right.
Such certificate or articles of incorporation or other constituent document
shall provide for adjustments which, for events subsequent to the effective date
of such certificate or articles of incorporation or other constitution document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section 2(f). The above provisions shall similarly apply to
successive transactions of the foregoing types.
(g) NOTICE OF ADJUSTMENTS OF CONVERSION RATIO. Whenever the Conversion
Ratio is adjusted as herein provided, the Company shall compute the adjusted
Conversion Ratio and shall prepare a notice signed by the Chairman of the Board,
President or a Executive or Senior Vice President of the Company setting forth
the adjusted Conversion Ratio and such notice shall as soon as practicable be
mailed by the Company to all record holders of Debentures at their last
addresses as they appear upon the Debenture register of the Company.
(h) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Company shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the Debentures, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of the Debentures; and if at any
time the number of authorized but unissued shares shall not be sufficient to
effect the conversion of the entire outstanding principal amount of the
Debentures, the Company will use its best efforts to take such corporate action
as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be
sufficient for such purposes.
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SECTION 3
OPTIONAL REDEMPTION
(a) The Company may redeem the Debentures at any time, in whole or in
part, on at least 30 days' notice but no more than 60 days' notice, together
with any accrued and unpaid interest to, but excluding the redemption date, at a
redemption price equal to 100% of the principal amount of the Debentures to be
redeemed under the following circumstances: (i) at any time after a date three
years from the Original Issue Date; or (ii) at any time prior to the date three
years from the Original Issue Date, if the average sales price of Common Stock,
in arms-length trades, known to the Company's management, equals or exceeds 140%
of the then effective Conversion Price for at least 30 consecutive Business
Days, provided at least 10 bona fide trades have occurred in the 30 Business Day
period.
(b) If the Company redeems less than all of the outstanding Debentures,
the Company's Board of Directors will select the Debentures to be redeemed in
multiples of $1,000 by lot, pro rata or any other method the Board of Directors
considers fair and appropriate, in its sole discretion. If a portion of a
Holder's Debentures is selected for partial redemption and such Holder delivers
to the Company a Holder Conversion Notice regarding the intent to convert a
portion of such Holder's Debentures, the portion selected for redemption will be
converted.
(c) The Company may not give notice of any redemption if it has
defaulted in payment of interest and the default is continuing or if an Event of
Default has otherwise occurred.
(d) The Debentures are not entitled to any sinking fund.
SECTION 4
LIMITATION ON TRANSACTIONS
If there shall have occurred and be continuing any Event of Default,
then (a) the Company shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in Common Stock of the Company, or any declaration of
a non-cash dividend in connection with the implementation of a shareholder
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (B) purchases of
common stock of the Company related to the rights under any of the Company's
benefit plans for its directors, officers or employees, or (C) as a result of a
reclassification of its capital stock for another class of its capital stock);
(b) the Company shall not make any payment of interest, principal or premium, if
any, or repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures or make any guarantee
payment with respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks pari
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passu with or junior to the Debentures; and (c) the Company shall not redeem,
purchase or acquire less than all of the outstanding Debentures.
SECTION 5
DEFINITIONS
For the purposes hereof, the following terms shall have the following
meanings:
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday in the United States or a day on which banking
institutions in the State of Florida are authorized or required by law or other
government action to close.
"COMMON STOCK" means the common stock, $.01 par value per share, of the
Company and stock of any other class into which such shares may hereafter have
been reclassified or changed.
"CURRENT MARKET PRICE" shall mean the last sales price of the Company's
Common Stock in an arms-length trade known to the Company's management.
"ORIGINAL ISSUE DATE" shall mean the date of the first issuance of the
Debentures regardless of the number of transfers of any Debenture and regardless
of the number of instruments which may be issued to evidence such Debenture.
"PERSON" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
"UNDERLYING SHARES" means the shares of Common Stock issuable upon
conversion of Debentures or as payment of interest in accordance with the terms
hereof.
SECTION 6
Any and all notices or other communications or deliveries to be provided by the
Holders hereunder, including, without limitation, any Holder Conversion Notice,
shall be in writing and delivered personally, by facsimile, sent by a nationally
recognized overnight courier service or sent by certified or registered mail,
postage prepaid, addressed to the Company, at 8181 Southwest, 117th Street,
Pinecrest, Florida 33156, facsimile No.: (305) 235-3424, attention
________________________, or such other address or facsimile number as the
Company may specify for such purposes by notice to the Holders delivered in
accordance with this Section 65. Any and all notices or other communications or
deliveries to be provided by the Company hereunder shall be in writing and
delivered personally, by facsimile, sent by a nationally recognized overnight
courier service or sent by certified or registered mail, postage prepaid,
addressed to each Holder at the facsimile telephone number or address of such
Holder appearing on the books of the
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Company, or if no such facsimile telephone number or address appears, at the
principal place of business of the Holder. Any notice or other communication or
deliveries hereunder shall be deemed given and effective on the earliest of (a)
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section 65 prior
to 5:00 p.m. (Eastern time), (b) the date after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section 65 later than 5:00 p.m. (Eastern
time) on any date and earlier than 11:59 p.m. (Eastern time) on such date, (c)
four days after deposit in the United States mail, (d) the Business Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (e) upon actual receipt by the party to whom such notice is
required to be given.
SECTION 7
This Debenture shall not entitle the Holder to any of the rights of a
shareholder of the Company, including without limitation, the right to vote, to
receive dividends and other distributions, or to receive any notice of, or to
attend, meetings of shareholders or any other proceedings of the Company, unless
and to the extent converted into shares of Common Stock in accordance with the
terms hereof.
SECTION 8
If this Debenture shall be mutilated, lost, stolen or destroyed, the
Company shall execute and deliver, in exchange and substitution for and upon
cancellation of a mutilated Debenture, or in lieu of or in substitution for a
lost, stolen or destroyed Debenture, a new Debenture for the principal amount of
this Debenture so mutilated, lost, stolen or destroyed but only upon receipt of
evidence of such loss, theft or destruction of such Debenture, and of the
ownership hereof, and indemnity, if requested, all reasonably satisfactory to
the Company.
SECTION 9
This Debenture shall be governed by and construed in accordance with the
laws of the State of Florida, without giving effect to conflicts of laws
thereof. The Company and the Holder hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in Miami-Dade County,
Florida, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, or that such suit, action or proceeding is improper. The Company hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by receiving a copy thereof sent
to the Company at the address in effect for notices to it under this instrument
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing
11
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
SECTION 10
Any waiver by the Company or the Holder of a breach of any provision of
this Debenture shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Debenture. The failure of the Company or the Holder to insist upon strict
adherence to any term of this Debenture on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Debenture. Any waiver
must be in writing.
SECTION 11
Whenever any payment or other obligation hereunder shall be due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day.
SECTION 12
So long as this Debenture remains outstanding, the Company will furnish
to the Holder copies of the Company's audited financial statements within 120
days of the end of each fiscal year.
SECTION 13
Subject to Chapter 201 of Florida Taxation and Finance Law, the Company
shall pay all required Florida excise document taxes, if applicable, related to
the issuance and delivery of this Debenture in the State of Florida and the
issuance and delivery of any and all Common Stock upon conversion of this
Debenture in the State of Florida. In case of issuance and delivery of this
Debenture outside of the State of Florida, an Affidavit for Execution of
Debenture Outside of the State of Florida, in the form attached hereto as
Exhibit B, shall be executed, copies of which shall be provided to the Company
and the Holder. The Company shall not be responsible for any Florida excise
document taxes related to subsequent transfers of this Debenture or the Common
Stock in the State of Florida.
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SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed by a duly authorized officer as of the date first above indicated.
FLORIDA SAVINGS BANCORP, INC.
By:
-------------------------------------
Name: Bernard Janis
Title: Chairman of the Board and Chief
Executive Officer
Name of Holder: _________________________________
Address: _________________________________
_________________________________
Telephone Number: _________________________________
Facsimile Number: _________________________________
EXHIBIT A
NOTICE OF HOLDER CONVERSION
The undersigned hereby elects to convert the principal amount of Debenture set
forth below into shares of common stock, $.01 par value per share (the "Common
Stock"), of Florida Savings Bancorp, Inc. (the "Company") according to the
conditions hereof, as of the date written below. If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto and is delivering herewith such
certificates and opinions as reasonably requested by the Company in accordance
therewith. No fee will be charged to the holder for any conversion, except for
such transfer taxes, if any. Conversion calculations:
----------------------------------------------
Date to Effect Conversion
----------------------------------------------
Principal Amount of Debentures To be Converted
----------------------------------------------
Number of shares of Common Stock to be Issued
----------------------------------------------
Applicable Conversion Price
----------------------------------------------
Signature
----------------------------------------------
Name
----------------------------------------------
Address
SCHEDULE 1 CONVERSION SCHEDULE
4% Convertible Debentures in the aggregate principal amount of
$_____________ issued by Florida Savings Bancorp, Inc. This Conversion schedule
reflects conversions made under Section 2(a)(i) of the above referenced
Debentures.
Dated: _______________________
Aggregate Principal
Amount Remaining Company
Date of Conversion Amount of Conversion Subsequent to Conversion Attest
- -------------------------- ------------------------------ --------------------------------- --------------
EXHIBIT B
AFFIDAVIT FOR EXECUTION OF DEBENTURE
OUTSIDE OF THE STATE OF FLORIDA
STATE OF -------------)
) ss:
COUNTY OF ------------)
BEFORE ME, the undersigned Notary Public, duly authorized in the County
and State aforesaid to administer oaths and take acknowledgments, personally
appeared the undersigned witnesses, to me known to be the persons described as
witnesses to the foregoing Debenture(s) and who witnessed the execution of the
foregoing Debenture(s), and who, first being duly sworn by me did each depose,
say and acknowledge before me that they were present at the time that the said
Debenture(s) was (were) executed, that they saw the same executed by __________,
of FLORIDA SAVINGS BANCORP, INC., and that they saw the delivery of the
Debenture(s) on this date to the Holder or to __________________________, who
has been appointed to serve as the representative of the Holder, in the
state and county above-referenced.
-------------------------------------
Subscribing Witness
Print Name:
-------------------------
Address:
----------------------------
-------------------------------------
Subscribing Witness
Print Name:
--------------------------
Address:
----------------------------
-------------------------------------
SWORN TO AND SUBSCRIBED before me and acknowledged to me this ____ day
of ___________________.
-------------------------------------
(Signature of Notary Public)
-------------------------------------
(Typed, printed or stamped name of
Notary Public)
Notary Public, State of ____________
Commission No.:
My commission expires: