As filed with
the Securities and Exchange Commission on October 30, 2013
Registration
No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER THE
SECURITIES ACT OF 1933
1
ST
UNITED BANCORP, INC.
(Exact
Name of Registrant as Specified in its Charter)
Florida
|
|
65-0925265
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
|
(I.R.S.
Employer Identification No.)
|
One North
Federal Highway
Boca Raton, Florida 33432
561-362-3435
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
John
Marino
President
1
st
United Bancorp, Inc.
One North
Federal Hwy.
Boca Raton,
Florida 33432
(561) 362-3435
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
Copy to:
Michael V. Mitrione, Esq.
David C. Scileppi, Esq.
Gunster,
Yoakley & Stewart, P.A.
777 S. Flagler Drive Suite. 500 East
West Palm Beach, Florida 33401
Telephone: (561)
650-0553
Fax: (561) 655-5677
Approximate
Date of Commencement of Proposed Sale to the Public:
From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box.
o
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box.
x
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering.
o
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If
this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to rule 413(b) under the Securities Act, check the following
box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer
o
|
Accelerated
filer
x
|
Non-accelerated
filer:
o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company
o
|
CALCULATION
OF REGISTRATION FEE
|
|
|
|
|
Title of each class of
Securities to be registered
|
Amount to be
registered
(1)
|
Proposed
maximum offering
price per unit
(2)
|
Proposed maximum
aggregate offering
price
(1)(2)(3)(4)
|
Amount of
Registration
Fee
(3)
|
Common Stock, par value $0.01 per share
|
—
|
—
|
—
|
—
|
Preferred Stock, par value $0.01 per share
|
—
|
—
|
—
|
—
|
Debt Securities
(5)
|
—
|
—
|
—
|
—
|
Warrants
|
—
|
—
|
—
|
—
|
Subscription Rights
|
—
|
—
|
—
|
—
|
Units
|
—
|
—
|
—
|
—
|
TOTAL
|
|
|
$150,000,000.00
|
$19,320
|
|
(1)
|
Any
securities
registered
hereunder
may
be
sold
separately,
together
or
as
units
with
other
securities
registered
hereunder.
Such
indeterminate
principal
amount,
liquidation
amount
or
number
of
each
identified
class
of
securities
as
may
from
time
to
time
be
issued
at
indeterminate
prices,
in
U.S.
Dollars
or
the
equivalent
thereof
denominated
in
foreign
currencies.
The
aggregate
maximum
offering
price
of
all
securities
issued
pursuant
to
this
registration
statement
shall
not
have
a
maximum
aggregate
offering
price
that
exceeds
$150,000,000.
The
securities
registered
also
include
such
indeterminate
principal
amount,
liquidation
amount
or
number
of
identified
classes
of
securities
as
may
be
issued
upon
conversion,
redemption,
exercise
or
settlement
of,
or
exchange
for,
preferred
stock,
debt
securities,
warrants,
or
subscription
rights,
including
pursuant
to
the
anti-dilution
provisions
of
any
such
securities.
In
addition,
pursuant
to
Rule
416
under
the
Securities
Act
of
1933,
as
amended
(the
“Securities
Act”),
the
securities
being
registered
hereunder
include
such
indeterminate
number
of
securities
as
may
be
issuable
with
respect
to
the
securities
being
registered
hereunder
as
a
result
of
splits,
security
dividends
or
similar
transactions.
|
|
(2)
|
The
proposed
maximum
aggregate
offering
price
per
class
of
security
will
be
determined
from
time
to
time
by
the
Registrant
in
connection
with
the
issuance
by
the
Registrant
of
the
securities
registered
hereunder
and
is
not
specified
as
to
each
class
of
security
pursuant
to
General
Instruction
II.D.
of
Form
S-3
under
the
Securities
Act.
|
|
(3)
|
Pursuant
to
Rule
457(o)
under
the
Securities
Act,
which
permits
the
registration
fee
to
be
calculated
on
the
basis
of
the
maximum
offering
price
of
all
the
securities
listed,
the
table
does
not
specify
by
each
class
information
as
to
the
amount
to
be
registered,
proposed
maximum
offering
price
per
unit
or
proposed
maximum
aggregate
offering
price.
Unless
otherwise
indicated
in
an
amendment
to
this
filing,
no
separate
consideration
will
be
received
for
common
stock,
debt
securities
or
guarantees
of
debt
securities
that
are
issued
upon
conversion
of
or
exchange
for
debt
securities
registered
hereunder.
Securities
having
an
aggregate
offering
price
of
$62,625,000,
registered
under
a
registration
statement
on
Form
S-3
(File
No.
333-170789)
filed
by
1
st
United
Bancorp,
Inc.
on
December
7,
2010,
remain
unsold.
|
|
(4)
|
Estimated
solely
for
the
purpose
of
calculating
the
registration
fee
in
accordance
with
Rule
457
under
the
Securities
Act.
|
|
(5)
|
If
any
Debt
Securities
are
issued
at
an
original
issue
discount,
then
the
offering
price
will
be
in
such
greater
principal
amount
as
will
result
in
an
aggregate
initial
offering
price
not
to
exceed
$150,000,000
less
the
dollar
amount
of
any
securities
previously
issued,
so
that
in
no
event
will
the
aggregate
initial
offering
price
of
any
securities
issued
under
this
Registration
Statement
exceed
$150,000,000.
|
The Registrant
hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is
not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
Subject
to Completion dated October 30, 2013
PROSPECTUS
$150,000,000
COMMON STOCK
PREFERRED
STOCK
DEBT SECURITIES
WARRANTS
SUBSCRIPTION
RIGHTS
UNITS
We, 1
st
United Bancorp, Inc., may offer and sell from time to time the following securities separately or together in any combination:
|
·
|
subscription
rights;
and
|
Our debt
securities may consist of debentures, notes, or other types of debt. The preferred stock, debt securities, warrants, subscription
rights, and units may be convertible, exercisable or exchangeable for common or preferred stock or other securities of ours. We
will determine when we sell securities, the amounts and types of securities we will sell and the prices and other terms on which
we will sell them. The aggregate offering price of the securities that we may issue under this prospectus will not exceed $150,000,000.
We may
sell securities, on a continuous or delayed basis, to or through underwriters, dealers or agents or directly to purchasers. If
any agents or underwriters are involved in the sale of any of these securities, the applicable prospectus supplement will provide
their names and any applicable fees, commissions or discounts.
Each time
we sell securities pursuant to this prospectus, we will provide a prospectus supplement and attach it to this prospectus. The
prospectus supplements will contain more specific information about the offering and the securities being offered. The prospectus
supplements may also add, update or change information contained in this prospectus. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement describing the method and terms of the offering.
You should carefully
read this prospectus and any accompanying prospectus supplement, together with the documents we incorporate by reference, before
you invest.
Investing
in our securities involves a high degree of risk. You should consider carefully the risks and uncertainties in the section entitled
“
Risk Factors
” beginning on page 6 of this prospectus, in any prospectus supplement relating to an offering
of those securities, and in the documents we file with the Securities and Exchange Commission before investing in our securities.
These
securities are our unsecured obligations and are not savings accounts, deposits, or other obligations of any bank or non-bank
subsidiary of ours and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency.
Our common
stock is listed on the Nasdaq Global Select Market under the symbol “FUBC”. You are urged to obtain current market
quotations of the common stock. The applicable prospectus supplement will contain information, where applicable, as to any listing
on the Nasdaq Global Select Market or any securities market or other exchange of the securities covered by the applicable prospectus
supplement.
Neither
the Securities and Exchange Commission, any state securities commission, the Federal Deposit Insurance Corporation or the Board
of Governors of the Federal Reserve, nor any regulatory agency has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of
this prospectus is October 30, 2013.
TABLE
OF CONTENTS
Prospectus
|
|
|
|
|
|
ABOUT
THIS PROSPECTUS
|
|
|
|
|
|
|
This prospectus
is part of a registration statement we filed with the Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. Under this shelf registration process, we may, from time to time, offer and sell, in one or more offerings:
|
|
|
|
|
|
|
|
|
·
|
common stock;
|
|
|
|
|
|
|
|
|
·
|
preferred stock;
|
|
|
|
|
|
|
|
|
·
|
debt securities;
|
|
|
|
|
|
|
|
|
·
|
warrants;
|
|
|
|
|
|
|
|
|
·
|
subscription rights; and
|
|
|
|
|
|
|
|
|
·
|
units.
|
|
|
|
|
|
We may
also issue common stock upon conversion or exchange of any of the securities listed above.
|
|
|
|
|
|
This prospectus
provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement containing specific information about the terms of the securities being offered. That prospectus supplement may
include a discussion of any risk factors or other special considerations that apply to those securities. The prospectus supplement
may also add, update or change the information in this prospectus. If there is any inconsistency between the information in
this prospectus and any prospectus supplement, you should rely on the information in that prospectus supplement. You should
read both this prospectus and any prospectus supplement together with additional information described under the heading “Where
You Can Find More Information.”
|
|
|
|
|
|
The registration
statement containing this prospectus, including exhibits to the registration statement, provides additional information about
us and the securities offered under this prospectus. The registration statement can be read at the SEC web site or at the
SEC offices mentioned under the heading “Where You Can Find More Information.”
|
|
|
|
|
|
THIS
PROSPECTUS MAY NOT BE USED TO SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
|
|
|
|
|
|
You should
rely only on the information we incorporate by reference or present in this prospectus or the relevant prospectus supplement.
We have not authorized anyone else, including any underwriter or agent, to provide you with different or additional information.
We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement which includes the specific
terms of that offering. We are only offering these securities in states where the offer is permitted. You should not assume
that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the
dates on the front of those documents.
|
|
|
|
|
|
In this
prospectus, “1
st
United Bancorp, Inc.,” “1
st
United,” the “Company,”
“we,” “our,” “ours,” and “us” refer to 1
st
United Bancorp, Inc.,
which is a Florida corporation headquartered in Boca Raton, Florida, and its subsidiaries on a consolidated basis, unless
the context otherwise requires. References to “1
st
United Bank” or the “Bank” means our
Florida chartered commercial banking subsidiary. References to “Bancorp” mean solely 1
st
United Bancorp,
Inc. without its subsidiaries. References to the “Former 1st United Bancorp” or “Former 1st United Bank”
refer to a bank holding company or Florida chartered commercial bank, respectively, that was acquired by Wachovia Bank in
1998. There is no relationship between Former 1
st
United Bancorp and us or Former 1
st
United Bank and
the Bank, other than certain members of our and the Bank’s board and management team were affiliated with Former 1
st
United Bancorp and Former 1
st
United Bank.
|
|
|
|
|
|
|
|
|
|
|
|
|
WHERE YOU CAN FIND MORE INFORMATION
|
|
|
|
|
|
We file annual, quarterly, and current reports, proxy statements and other information with the Securities and Exchange Commission (“SEC”). Our SEC filings are available to the public over the Internet at the SEC’s web site at www.sec.gov and on the investor relations page of our website at www.1stunitedbankfl.com. Neither this website nor the information on this website is included or incorporated in, or is part of, this prospectus. You may also read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street N.E., Washington, D.C. 20549. You can also obtain copies of the documents upon the payment of a duplicating fee to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC like us. Our SEC filings are also available to the public from the SEC’s website at http://www.sec.gov.
|
|
|
|
|
|
This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits included in the registration statement for further information about us and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
|
|
|
|
|
|
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
|
|
|
|
|
|
The SEC allows us to “incorporate by reference” information we file with it, which means that we can disclose important information to you by referring you to other documents. The information incorporated by reference is considered to be a part of this prospectus.
|
|
|
|
|
|
We incorporate by reference the following documents listed below and all future filings we make with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), after the date we file this initial registration statement (including those documents filed prior to the effectiveness of the registration statement) and prior to the termination of the offering, except to the extent that any information contained in such filings is deemed “furnished” in accordance with SEC rules:
|
|
|
|
|
|
|
·
|
our Annual Report on Form 10-K for the year ended December 31, 2012, filed with the SEC on February 8, 2013;
|
|
|
|
|
|
|
|
|
·
|
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2013, June 30, 2013, and September 30, 2013 filed with the SEC on April 19, 2013, July 23, 2013, and October 21, 2013, respectively;
|
|
|
|
|
|
|
|
|
·
|
our Current Reports on Form 8-K, filed with the SEC on January 30, 2013, March 25, 2013, May 30, 2013, and July 1, 2013 (as amended on July 23, 2013);
|
|
|
|
|
|
|
|
|
·
|
the portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 12, 2013, that are deemed “filed” with the SEC under the Exchange Act; and
|
|
|
|
|
|
|
|
|
·
|
the description of our common stock, $0.01 par value per, included in our Registration Statement on Form 8-A filed with the SEC on September 17, 2009.
|
|
|
|
|
|
|
|
These documents contain important information about us, our business and our financial condition. Our filings are available on our website, www.1stunitedbankfl.com. Information contained in or linked to our website is not part of this prospectus. You also may request a copy of these filings, at no cost, by writing or telephoning us at:
|
|
|
|
|
|
1
st
United Bancorp, Inc.
|
|
|
|
|
|
One North Federal Highway
|
|
|
|
|
|
Boca Raton,
Florida 33432
|
|
|
|
|
|
(561) 362-3435
|
|
|
|
|
|
Any statement contained in a document that is incorporated by reference will be modified or superseded for all purposes to the extent that a statement contained in this prospectus modifies or is contrary to that previous statement. Any statement so modified or superseded will not be deemed a part of this prospectus except as so modified or superseded.
|
|
|
|
|
|
|
|
|
|
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
|
|
|
|
|
|
The SEC encourages companies to disclose forward-looking information so that investors can better understand a company’s future prospects and make informed investment decisions. This prospectus and the documents incorporated by reference contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, among others, statements about our beliefs, plans, objectives, goals, expectations, estimates and intentions that are subject to significant risks and uncertainties and are subject to change based on various factors, many of which are beyond our control. The words “may,” “could,” “should,” “would,” “believe,” “anticipate,” “estimate,” “expect,” “intend,” “plan,” “target,” “goal,” and similar expressions are intended to identify forward-looking statements.
|
|
|
|
|
|
All forward-looking statements, by their nature, are subject to risks and uncertainties. Our actual future results may differ materially from those set forth in the forward-looking statements. Our ability to achieve our financial objectives could be adversely affected by the factors discussed in detail in the section captioned “Risk Factors”, or in our Annual Report on Form 10-K or in our Quarterly Reports on Form 10-Q, or in our Current Reports on Form 8-K, or in other places, as well as the following factors:
|
|
|
|
|
|
|
·
|
our ability to comply with the terms of the loss sharing agreements with the Federal Deposit Insurance Corporation (“FDIC”);
|
|
|
|
·
|
legislative or regulatory changes, including the Dodd-Frank Wall Street Reform and Consumer Protection Act and Basel III;
|
|
|
|
·
|
our ability to integrate the business and operations of companies and banks that we have acquired and those we may acquire in the future;
|
|
|
|
·
|
the failure to achieve expected gains, revenue growth, and/or expense savings from past and future acquisitions;
|
|
|
|
·
|
the strength of the United States economy in general and the strength of the local economies in which we conduct operations;
|
|
|
|
·
|
the accuracy of our financial statement estimates and assumptions, including the estimate for our loan loss provision and the FDIC loss share receivable;
|
|
|
|
·
|
the frequency and magnitude of foreclosure of our loans;
|
|
|
|
·
|
the reduction in FDIC insurance on certain non-interest bearing accounts due to the expiration of the Transaction Account Guarantee program;
|
|
|
|
·
|
increased competition and its effect on pricing, including the impact on our net interest margin from repeal of Regulation Q;
|
|
|
|
·
|
our customers’ willingness to make timely payments on their loans;
|
|
|
|
·
|
the effects of the health and soundness of other financial institutions;
|
|
|
|
·
|
changes in the securities and real estate markets;
|
|
|
|
·
|
changes in monetary and fiscal policies of the U.S. Government;
|
|
|
|
·
|
inflation, interest rate, market and monetary fluctuations;
|
|
|
|
·
|
the effects of our lack of a diversified loan portfolio, including the risks of geographic and industry concentrations;
|
|
|
|
·
|
our need and our ability to incur additional debt or equity financing;
|
|
|
|
·
|
the effects of harsh weather conditions, including hurricanes, and man-made disasters;
|
|
|
|
·
|
our ability to comply with the extensive laws and regulations to which we are subject;
|
|
|
|
·
|
the willingness of clients to accept third-party products and services rather than our products and services and vice versa;
|
|
|
|
·
|
technological changes;
|
|
|
|
·
|
negative publicity and the impact on our reputation;
|
|
|
|
·
|
the effects of security breaches and computer viruses that may affect our computer systems;
|
|
|
|
·
|
changes in consumer spending and saving habits;
|
|
|
|
·
|
changes in accounting principles, policies, practices or guidelines;
|
|
|
|
·
|
the limited trading activity of our common stock;
|
|
|
|
·
|
the concentration of ownership of our common stock;
|
|
|
|
·
|
our ability to retain key members of management;
|
|
|
|
·
|
anti-takeover provisions under federal and state law as well as our Articles of Incorporation and our Bylaws;
|
|
|
|
·
|
other risks described from time to time in our filings with the Securities and Exchange Commission; and
|
|
|
|
·
|
our ability to manage the risks involved in the foregoing.
|
|
|
|
|
|
|
|
|
|
|
However, other factors besides those listed above and the section captioned “Risk Factors” or discussed elsewhere in this prospectus also could adversely affect our results, and you should not consider any such list of factors to be a complete set of all potential risks or uncertainties. These forward-looking statements are not guarantees of future performance, but reflect the present expectations of future events by our management and are subject to a number of factors and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Any forward-looking statements made by us speak only as of the date they are made. We do not undertake to update any forward-looking statement, except as required by applicable law.
|
|
|
|
|
RISK
FACTORS
An investment
in our securities will involve risks. Before making an investment decision, you should read carefully and consider the risk factors
incorporated by reference in this prospectus, as well as those contained in any applicable prospectus supplement, as the same
may be updated from time to time by our future filings with the SEC under the Exchange Act. You should also refer to other information
contained in or incorporated by reference in this prospectus and any applicable prospectus supplement, including our financial
statements and the related notes incorporated by reference herein. Additional risks and uncertainties not presently known to us
at this time or that we currently deem immaterial may also materially and adversely affect our business and operations.
1
st
United Bancorp, Inc.
We are
a financial holding company headquartered in Boca Raton, Florida. 1
st
United Bank, a Florida state chartered bank,
is our wholly owned subsidiary. As of October 30, 2013, 1
st
United Bank provides financial services through its four
offices in Palm Beach County; four offices in Broward County; four offices in Miami-Dade County; one office each in the cities
of Vero Beach, Sebastian and Barefoot Bay; four offices in Pinellas County; and one office each in Pasco, Orange and Hillsborough
counties.
We follow
a business plan that emphasizes the delivery of commercial banking services to businesses and individuals in our geographic market
who desire a high level of personalized service. The business plan includes business banking, professional market services, real
estate lending and private banking, as well as full community banking products and services. We focus on the building of a balanced
loan and deposit portfolio, with emphasis on low cost liabilities and variable rate loans.
As is
the case with banking institutions generally, our operations are materially and significantly influenced by general economic conditions
and by related monetary and fiscal policies of financial institution regulatory agencies, including the Board of Governors of
the Federal Reserve System (the “Federal Reserve Board”) and the FDIC. Deposit flows and costs of funds are influenced
by interest rates on competing investments and general market rates of interest. Lending activities are affected by the demand
for financing of real estate and other types of loans, which in turn is affected by the interest rates at which such financing
may be offered and other factors affecting local demand and availability of funds. We face strong competition in the attraction
of deposits (our primary source of lendable funds) and in the origination of loans.
Bancorp,
a Florida corporation, is regulated as a financial holding company by the Federal Reserve Board. 1
st
United Bank is
regulated as a Florida-chartered commercial bank by the Florida Office of Financial Regulation, or OFR, and the Federal Reserve
Board. Our principal executive offices are located at One North Federal Highway, Boca Raton, Florida, 33432, and our telephone
number is (561) 362-3435.
RATIO
OF EARNINGS TO FIXED CHARGES
The
ratio of earnings to combined fixed charges and preferred stock dividends for each of the periods indicated is as follows:
|
|
Nine
Months
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September
30,
|
|
|
Years
ended December 31,
|
|
|
|
2013
|
|
|
2012
|
|
|
2011
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
|
(Dollars in Thousands)
|
|
Earnings
available for fixed charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
before income taxes
|
|
$
|
6,783
|
|
|
$
|
7,536
|
|
|
$
|
5,954
|
|
|
$
|
2,613
|
|
|
$
|
4,847
|
|
|
$
|
(2,111
|
)
|
Add:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed
charges
|
|
|
2,884
|
|
|
|
5,414
|
|
|
|
6,457
|
|
|
|
7,846
|
|
|
|
8,576
|
|
|
|
10,253
|
|
Deduct:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends
on preferred stock
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,241
|
|
|
|
590
|
|
Total
earnings available for fixed charges
|
|
$
|
9,667
|
|
|
$
|
12,950
|
|
|
$
|
12,411
|
|
|
$
|
10,459
|
|
|
$
|
12,182
|
|
|
$
|
7,552
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed
charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
interest expense
|
|
$
|
2,808
|
|
|
$
|
5,313
|
|
|
$
|
6,349
|
|
|
$
|
7,745
|
|
|
$
|
7,246
|
|
|
$
|
9,584
|
|
Interest
portion of rent expense
|
|
|
76
|
|
|
|
101
|
|
|
|
108
|
|
|
|
101
|
|
|
|
89
|
|
|
|
79
|
|
Dividends
on preferred stock
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
1,241
|
|
|
|
590
|
|
Total
fixed charges
|
|
$
|
2,884
|
|
|
$
|
5,414
|
|
|
$
|
6,457
|
|
|
$
|
7,846
|
|
|
$
|
8,576
|
|
|
$
|
10,253
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio
of earnings to fixed charges
(a)
|
|
|
3.35
|
x
|
|
|
2.39
|
x
|
|
|
1.92
|
x
|
|
|
1.33
|
x
|
|
|
1.42
|
x
|
|
|
0.74
|
x
|
(a) Earnings
were insufficient to cover fixed charges for the year ended December 31, 2008 by $2.7 million.
USE
OF PROCEEDS
Unless
the applicable prospectus supplement states otherwise, the net proceeds from the sale of the securities registered hereby will
be added to our general funds and will be available for general corporate purposes, including, among other things, the payment
of dividends on capital stock, repayment of existing indebtedness, investments in, or extensions of credit to, our existing or
future subsidiaries, and the financing of possible acquisitions.
Pending
such use, we may temporarily invest the net proceeds in short-term securities or reduce our short-term indebtedness, or we may
hold the net proceeds in deposit accounts in 1
st
United Bank.
REGULATORY
CONSIDERATIONS
Bancorp
is registered with the Federal Reserve Board as a financial holding company under the Gramm-Leach-Bliley Act and is registered
with the Federal Reserve Board as a bank holding company under the Bank Holding Company Act of 1956. As a result, we are subject
to supervisory regulation and examination by the Federal Reserve. The Gramm-Leach-Bliley Act, the Bank Holding Company Act, and
other federal laws subject financial holding companies to particular restrictions on the types of activities in which they may
engage, and to a range of supervisory requirements and activities, including regulatory enforcement actions for violations of
laws and regulations. For a discussion of the material elements of the regulatory framework applicable to financial holding companies,
bank holding companies and their subsidiaries and specific information relevant to Bancorp, please refer to our Annual Report
on Form 10-K for the fiscal year ended December 31, 2012, and any subsequent reports we file with the SEC, which are incorporated
by reference into the prospectus.
Dividends
from the Bank are our primary source of funds for payment of principal and interest on our debt and dividends to our shareholders.
There are statutory limits on the amount of dividends that 1
st
United Bank can pay to Bancorp without regulatory approval.
The Federal Reserve Board may restrict the ability of 1
st
United Bank to pay dividends if such payments would constitute
an unsafe or unsound banking practice. These regulations and restrictions may limit our ability to obtain funds from 1
st
United Bank for our cash needs, including funds for acquisitions and the payment of dividends, interest, and operating expenses.
In addition,
Florida law also places restrictions on the declaration of dividends from state chartered banks to their holding companies. Pursuant
to the Florida Financial Institutions Code, the Board of Directors of state chartered banks, after charging off bad debts, depreciation
and other worthless assets, if any, and making provisions for reasonably anticipated future losses on loans and other assets,
may quarterly, semi-annually or annually declare a dividend of up to the aggregate net profits of that period combined with the
bank’s retained net profits for the preceding two years and, with the approval of the Florida Office of Financial Regulation
and Federal Reserve Board, declare a dividend from retained net profits which accrued prior to the preceding two years. Before
declaring such dividends, 20% of the net profits for the preceding period as is covered by the dividend must be transferred to
the surplus fund of the bank until this fund becomes equal to the amount of the bank’s common stock then issued and outstanding.
A state chartered bank may not declare any dividend if (i) its net income (loss) from the current year combined with the retained
net income (loss) for the preceding two years aggregates a loss or (ii) the payment of such dividend would cause the capital account
of the bank to fall below the minimum amount required by law, regulation, order or any written agreement with the Florida Office
of Financial Regulation or a federal regulatory agency.
DESCRIPTION
OF CAPITAL STOCK
The following
is a brief description of the terms of our capital stock. This summary does not purport to be complete in all respects. This description
is subject to and qualified in its entirety by reference to our Amended and Restated Articles of Incorporation, as amended, and
our Bylaws, as amended, copies of which have been filed with the SEC and are also available upon request from us, the description
of our capital stock which is incorporated by reference herein through our previous filings with the SEC, including the description
of our capital stock contained in our registration statement on Form 8-A filed on September 17, 2009, and any amendment or
report filed to update such description, and to the applicable provisions of the Florida Business Corporation Act.
General
Our authorized
capital stock consists of 60,000,000 shares of common stock, of which 34,288,841 shares were issued and outstanding as of October
15, 2013. Additionally, as of October 15, 2013, there were 4,324,886 options to acquire shares of our common stock outstanding
of which 1,956,332 were exercisable.
Under
our Articles of Incorporation, our Board has the power, without further action by the holders of common stock, to designate and
issue from time to time up to 5,000,000 shares of preferred stock in series having such designations, powers, preferences, rights
and limitations, and on such terms and conditions, as our Board shall from time to time determine. Such rights and preferences
include those as to voting, dividends (including whether dividends are cumulative), redemption (including sinking fund provisions),
liquidation preferences and conversion.
Common
Stock
Holders
of our common stock are entitled to receive such dividends as may from time to time be declared by our Board of Directors out
of funds legally available for such purposes. Holders of common stock are entitled to one vote per share on all matters on which
the holders are entitled to vote and do not have any cumulative votes in the election of directors. Holders of common stock have
no conversion, redemption or sinking fund rights. In the event of our liquidation, dissolution or winding-up, holders of common
stock are entitled to share equally and ratably in our assets, if any, remaining after the payment of all our debts and liabilities,
and the satisfaction of the liquidation preferences of any series of preferred stock then outstanding. Holders of common stock
do not have any preemptive or other preferential rights to purchase any shares of equity securities issued by us from time to
time.
The rights,
preferences, and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock that we may designate in the future.
Our Articles
of Incorporation and Bylaws contain certain provisions designed to assist our Board in protecting our and our shareholders’
interests if any group or person attempts to acquire control of us.
Our outstanding
shares of common stock are duly authorized, validly issued, fully paid and nonassessable.
Indemnification
of Directors, Officers, and Employees
The Florida
Business Corporation Act authorizes a company to indemnify its directors and officers in certain instances against certain liabilities
that they may incur by virtue of their relationship with the company. A company may indemnify any director, officer, employee
or agent against judgments, fines, penalties, amounts paid in settlement, and expenses incurred in any pending, threatened or
completed civil, criminal, administrative, or investigative proceeding (except an action by the company) against him in his capacity
as a director, officer, employee, or agent of the company, or another company if serving in such capacity at the company’s
request if he (i) acted in good faith; (ii) acted in a manner which he reasonably believed to be in or not opposed to the best
interests of the company; and (iii) with respect to a criminal action, had no reasonable cause to believe his conduct was unlawful.
Furthermore, a company may indemnify any director, officer, agent or employee against expenses incurred in defense or settlement
of any proceeding brought by the company against him in his capacity as a director, officer, employee or agent of the company,
or another company if serving in such capacity at the company’s request, if he: (i) acted in good faith; (ii) acted in a
manner which he reasonably believed to be in or not opposed to the best interests of the company; and (iii) is not adjudged to
be liable to the company (unless the court finds that he is nevertheless reasonably entitled to indemnity for expenses which the
court deems proper). A company must repay the expenses of any director, officer, employee or agent who is successful on the merits
of an action against him in his capacity as such.
A Florida
company is authorized to make any other or further indemnification or advancement of expenses of any of its directors, officers,
employees, or agents, except for acts or omissions which constitute (i) a violation of the criminal law (unless the individual
had reasonable cause to believe it was lawful); (ii) a transaction in which the individual derived an improper personal benefit;
(iii) in the case of a director, a circumstance under which certain liability provisions of the Florida Business Corporation Act
are applicable (related to payment of dividends or other distributions or repurchases of shares in violation of such Act); or
(iv) willful misconduct or a conscious disregard for the best interest of the company in a proceeding by the company, or a company
shareholder. A Florida company also is authorized to purchase and maintain liability insurance for its directors, officers, employees
and agents.
Under
our Bylaws, we may indemnify our directors and officers to the fullest extent permitted by applicable law. We have entered into
Indemnification Agreements with each member of the Board of Directors, which provide that we and 1
st
United Bank will
indemnify each such person to the fullest extent permitted by applicable law.
Federal
banking law, which is applicable to us as a financial holding company and to 1
st
United Bank as an insured depository
institution, limits our and 1st United Bank’s ability to indemnify our and its directors and officers. Neither 1
st
United Bank nor Bancorp may make, or agree to make, indemnification payments to an institution-affiliated party such as
an officer or director in connection with any administrative or civil action instituted by a federal banking agency if as a result
of the banking agency action the indemnitee is assessed a civil money penalty, is removed from office or prohibited from participating
in the conduct of our or 1
st
United Bank’s affairs, or is subject to a cease and desist order. Prior to the resolution
of any action instituted by the applicable banking agency, 1
st
United Bank, or we, as applicable, may indemnify officers
and directors only if the respective Board of Directors, as the case may be, (i) determines that the indemnified person acted
in good faith, (ii) determines after investigation that making indemnification payments would not affect our safety and soundness
or the safety and soundness of 1st United Bank, as the case may be, and (iii) if the indemnified party agrees in writing to reimburse
us or 1
st
United Bank, as the case may be, for any indemnity payments which turn out to be impermissible.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or controlling
persons pursuant to the provisions described above, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Listing
Our common
stock is listed on the Nasdaq Global Select Market under the trading symbol “FUBC.”
Transfer
Agent and Registrar
American
Stock Transfer & Trust Company, LLC is the transfer agent and registrar for our common stock.
DESCRIPTION
OF DEBT SECURITIES
The following
briefly summarizes the general terms and provisions of the debt securities that we may offer. The specific terms of a series of
debt securities that we may offer will be described in a prospectus supplement relating to that series of debt securities. The
debt securities will be issued under an indenture to be entered into between us and the trustee identified in the applicable prospectus
supplement. A form of the indenture has been filed as an exhibit to the registration statement of which this prospectus is part.
The terms of the debt securities will include those stated in the indenture (including any supplemental indenture that specifies
the terms of a particular series of debt securities) as well as those made part of the indenture by reference to the Trust Indenture
Act of 1939, as in effect on the date of the indenture. The indenture will be subject to and governed by the terms of the Trust
Indenture Act of 1939. We have summarized the material portions of the indenture below, but you should read the indenture for
other provisions that may be important to you.
The following
description, and any description of our debt securities in a prospectus supplement, may not be complete and is qualified in all
respects by reference to the provisions of the indenture and the form of certificates evidencing the debt securities relating
to the particular series of our debt securities. You are encouraged to read the more detailed provisions of these documents and
laws for provisions that may be important to you. You can obtain copies of our restated Articles of Incorporation and Bylaws by
following the directions under the heading “Where You Can Find More Information”.
General
The debt
securities will be our direct unsecured general obligations. The debt securities will be either senior debt securities or subordinated
debt securities. We will establish the terms of each series of debt securities that we will issue under the indenture by a resolution
of our Board of Directors. We will detail the terms of the debt securities that we will offer in an officers’ certificate
under the indenture or by a supplemental indenture. We will describe the particular terms of each series of debt securities that
we issue in a prospectus supplement relating to that series. The specific terms described in any prospectus supplement may differ
from the terms described below.
Under
the indenture, we can issue an unlimited amount of debt securities, including debt securities that are convertible into or exchangeable
for our other securities, including our common stock. We may issue the debt securities:
|
·
|
with
the
same
or
various
maturities,
|
We will
describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
|
·
|
the
initial
offering
price,
|
|
·
|
the
aggregate
principal
amount
of
that
series
of
debt
securities,
|
|
·
|
the
title
of
the
debt
securities,
|
|
·
|
any
limit
on
the
aggregate
principal
amount
of
the
debt
securities,
|
|
·
|
the
date
or
dates
on
which
we
will
pay
the
principal
on
the
debt
securities,
|
|
·
|
the
per
annum
rate
or
rates
(which
may
be
fixed
or
variable)
or
the
method
used
to
determine
such
rate
or
rates
(including
any
commodity,
commodity
index,
stock
exchange
index
or
financial
index)
at
which
the
debt
securities
will
bear
interest,
|
|
·
|
the
date
or
dates
from
which
interest
will
accrue,
|
|
·
|
the
date
or
dates
on
which
interest
will
commence
and
be
payable,
|
|
·
|
any
regular
record
date
for
the
interest
payable
on
any
interest
payment
date,
|
|
·
|
the
place
or
places
where
we
will
pay
the
principal,
premium,
and
interest
with
respect
to
the
debt
securities,
|
|
·
|
the
terms
and
conditions
upon
which
we
may
redeem
the
debt
securities,
|
|
·
|
any
obligation
we
have
to
redeem
or
purchase
the
debt
securities
under
any
sinking
fund
or
similar
provisions
or
at
the
option
of
a
holder
of
debt
securities,
|
|
·
|
the
denominations
in
which
we
will
issue
the
debt
securities,
if
we
issue
them
other
than
in
denominations
of
$1,000
and
any
integral
multiple
thereof,
|
|
·
|
whether
we
will
issue
the
debt
securities
in
the
form
of
certificated
debt
securities
or
global
securities,
|
|
·
|
the
currency
of
denomination
of
the
debt
securities,
|
|
·
|
any
addition
to
or
change
in
the
events
of
default
that
are
described
in
this
prospectus
or
in
the
indenture,
|
|
·
|
any
change
in
the
acceleration
provisions
that
are
described
in
this
prospectus
or
in
the
indenture,
|
|
·
|
the
ranking
of
the
debt
securities
of
the
series,
including
the
relative
degree,
if
any,
to
which
the
debt
securities
of
such
series
shall
be
subordinated
to
one
or
more
other
series
of
debt
securities
or
other
obligations
of
the
Company
in
right
of
payment,
whether
outstanding
or
not,
|
|
·
|
any
addition
to
or
change
in
the
covenants
described
in
this
prospectus
or
in
the
indenture
with
respect
to
the
debt
securities,
|
|
·
|
any
other
terms
of
the
debt
securities,
which
may
modify
or
delete
any
provision
of
the
indenture
as
it
applies
to
that
series,
and
|
|
·
|
any
depositaries,
interest
rate
calculation
agents,
exchange
rate
calculation
agents
or
other
agents
with
respect
to
the
debt
securities.
|
We may
issue debt securities that provide that we must only pay an amount less than our stated principal amount if our maturity date
accelerates. In the prospectus supplement, we will also provide you with information on the federal income tax considerations
and other special considerations that apply to any of the particular debt securities.
Conversion
or Exchange Rights
We will
set forth in the prospectus supplement the terms under which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to whether conversion or exchange is mandatory, at
the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock
or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Form,
Exchange and Transfer
Each debt
security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or
DTC, as depositary, or a nominee of DTC (a “book-entry debt security”), or a certificate issued in definitive registered
form (a “certificated debt security”).
We will
describe whether the particular series of debt securities will be a book-entry debt security or a certificated debt security in
the applicable prospectus supplement. Except as described under “Global Debt Securities and Book-Entry System” below,
we will not issue book-entry debt securities in certificated form.
Certificated
Debt Securities
If you
hold certificated debt securities, you may transfer or exchange certificated debt securities at the trustee’s office or
at paying agencies as provided for in the indenture. We will not charge you any service charge for any transfer or exchange of
certificated debt securities, but may require you to pay a sum sufficient to cover any tax or other governmental charge that may
be required in connection with your transfer or exchange.
You may
transfer certificated debt securities and the right to receive the principal, premium and interest on certificated debt securities
only by surrendering the certificate representing your certificated debt securities. After you surrender your certificated debt
securities, we or the trustee will reissue your certificate or issue a new certificate to the new holder.
Global
Debt Securities and Book-Entry System
A global
debt security is a debt security that represents, and is denominated in an amount equal to the aggregate principal amount of,
all outstanding debt securities of a series, or any portion thereof, in either case having the same terms, including the same:
|
·
|
date
or
dates
on
which
we
must
pay
principal
and
interest,
and
|
|
·
|
interest
rate
or
method
of
determining
interest.
|
If we
decide to issue debt securities in the form of one or more global securities, then we will deposit each global debt security representing
book-entry debt securities with, or on behalf of, the depositary and will also register the global debt security in the name of
the depositary or its nominee.
The prospectus
supplement will describe the specific terms of the depositary arrangement for debt securities of a series that are issued in global
form. None of our company, the trustee, any payment agent or the security registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global debt security
or for maintaining, supervising or reviewing any records relating to these beneficial ownership interests.
Consolidation,
Merger and Sale of Assets
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indenture or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt
securities before the consolidation, merger or sale.
Covenants
Unless
stated otherwise in the applicable prospectus supplement and in a supplement to the indenture, a resolution of our Board of Directors
or an officers’ certificate delivered under the indenture, the debt securities will not contain any restrictive covenants,
including covenants that limit or restrict our business or operations, the pledging of our assets or the incurrence by us of indebtedness.
We will describe in the applicable prospectus supplement any material covenants in respect of a series of debt securities.
Ranking
Unless
stated otherwise in the applicable prospectus supplement and in a supplement to the indenture, a resolution of our Board of Directors
or an officers’ certificate delivered under the indenture, the debt securities will rank equally and ratably with our other
unsecured and unsubordinated debt. The debt securities will not be secured by any properties or assets and will constitute our
unsecured debt.
We are
a holding company and we will depend upon the earnings and cash flow of our subsidiaries to meet our obligations under the debt
securities. Since the creditors of any of our subsidiaries would generally have a right to receive payment that is superior to
our right to receive payment from the assets of that subsidiary, holders of our debt securities will be effectively subordinated
to creditors of our subsidiaries. In addition, there are regulatory provisions which limit the amount of dividends 1
st
United Bank can pay to us as well as regulatory provisions which limit 1
st
United Bank’s ability to make loans
and other advances to us.
Events
of Default Under the Indenture
Under
the indenture, an “event of default” means, with respect to any series of debt securities, any of the following:
|
·
|
default
in
the
payment
of
any
interest
on
any
debt
security
of
that
series
when
it
becomes
due
and
payable,
and
the
continuance
of
that
default
for
a
period
of
30 days
(unless
we
deposit
the
entire
amount
of
the
payment
with
the
trustee
or
with
a
paying
agent
prior
to
the
expiration
of
the
30-day
period);
|
|
·
|
default
in
the
payment
of
principal
or
premium
on
any
debt
security
of
that
series
when
due
and
payable;
|
|
·
|
default
in
the
deposit
of
any
sinking
fund
payment,
when
and
as
due
on
any
debt
security
of
that
series;
|
|
·
|
default
in
the
performance
or
breach
of
any
of
our
other
covenants
or
warranties
in
the
indenture
(other
than
a
covenant
or
warranty
that
has
been
included
in
the
indenture
solely
for
the
benefit
of
a
series
of
debt
securities
other
than
that
series),
which
default
continues
uncured
for
a
period
of
60 days
after
we
receive
written
notice
from
the
trustee
or
we
and
the
trustee
receive
written
notice
from
the
holders
of
at
least
25%
in
principal
amount
of
the
outstanding
debt
securities
of
that
series
as
provided
in
the
indenture;
|
|
·
|
some
events
of
bankruptcy,
insolvency
or
reorganization
of
the
Company;
and
|
|
·
|
any
other
event
of
default
provided
with
respect
to
debt
securities
of
that
series
that
is
described
in
the
applicable
supplement
to
this
prospectus.
|
No event
of default for a particular series of debt securities, except for the events of default relating to events of bankruptcy, insolvency
or reorganization, will necessarily constitute an event of default for any other series of debt securities.
If an
event of default for debt securities of any series occurs and is continuing, then the trustee or the holders of not less than
25% in principal amount of the outstanding debt securities of that series may declare to be due and payable immediately the principal
(or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in
the terms of that series) and premium of all debt securities of that series. In the case of an event of default resulting from
events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) and premium of all outstanding debt
securities will become and be immediately due and payable without any declaration or other act by the trustee or any holder of
outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series, but
before the trustee has obtained a judgment or decree for payment of the money due, the holders of a majority in principal amount
of the outstanding debt securities of that series may, subject to us having paid or deposited with the trustee a sum sufficient
to pay overdue interest and principal that has become due other than by acceleration and certain other conditions, rescind and
annul such acceleration if all events of default, other than the non-payment of accelerated principal and premium with respect
to debt securities of that series, have been cured or waived as provided in the indenture. For information as to waiver of defaults,
see the discussion under “Modification and Waiver” below. We refer you to the prospectus supplement relating to any
series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of
the principal amount of the discount securities upon the occurrence of an event of default and the continuation of an event of
default.
The indenture
provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request
of any holder of outstanding debt securities unless the trustee receives indemnity satisfactory to it against any loss, liability
or expense. Subject to some rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities
of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder
of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the
indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
|
·
|
that
holder
has
previously
given
the
trustee
written
notice
of
a
continuing
event
of
default
under
the
debt
securities
of
that
series;
and
|
|
·
|
the
holders
of
at
least
25%
in
principal
amount
of
the
outstanding
debt
securities
of
that
series
have
made
written
request,
and
offered
reasonable
indemnity,
to
the
trustee
to
institute
such
proceeding
as
trustee,
and
the
trustee
shall
not
have
received
from
the
holders
of
a
majority
in
principal
amount
of
the
outstanding
debt
securities
of
that
series
a
direction
inconsistent
with
that
request
and
has
failed
to
institute
the
proceeding
within
60
days.
|
Notwithstanding
the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal,
premium and any interest with respect to that debt security on or after the due dates expressed in that debt security and to institute
suit for the enforcement of payment.
The indenture
requires us, within 90 days after the end of our fiscal year, to furnish to the trustee a statement of our compliance with
the indenture. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of
any default or event of default (except in payment on any debt securities of that series) with respect to debt securities of that
series if it in good faith determines that withholding notice is in the interest of the holders of those debt securities.
Modification
of Indenture; Waiver
We and
the trustee may modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the modifications or amendments. We and the trustee may not make any modification
or amendment without the consent of the holder of each affected debt security then outstanding if that amendment will:
|
·
|
change
the
amount
of
debt
securities
whose
holders
must
consent
to
an
amendment
or
waiver;
|
|
·
|
reduce
the
rate
of,
or
extend
the
time
for
payment
of,
interest
(including
default
interest)
on
any
debt
security;
|
|
·
|
reduce
the
principal
of,
or
premium
on,
or
change
the
fixed
maturity
of
any
debt
security
or
reduce
the
amount
of,
or
postpone
the
date
fixed
for,
the
deposit
of
any
sinking
fund
payment
or
analogous
obligation
with
respect
to
any
series
of
debt
securities;
|
|
·
|
reduce
the
principal
amount
of
discount
securities
payable
upon
acceleration
of
maturity;
|
|
·
|
waive
a
default
in
the
payment
of
the
principal,
premium
or
interest
with
respect
to
any
debt
security
(except
a
rescission
of
acceleration
of
the
debt
securities
of
any
series
by
the
holders
of
at
least
a
majority
in
aggregate
principal
amount
of
the
then
outstanding
debt
securities
of
that
series
and
a
waiver
of
the
payment
default
that
resulted
from
that
acceleration);
|
|
·
|
make
the
principal,
premium
or
interest
with
respect
to
any
debt
security
payable
in
currency
other
than
that
stated
in
the
debt
security;
|
|
·
|
make
any
change
to
certain
provisions
of
the
indenture
relating
to,
among
other
things,
the
right
of
holders
of
debt
securities
to
receive
payment
of
the
principal,
premium
and
interest
with
respect
to
those
debt
securities
and
to
institute
suit
for
the
enforcement
of
any
payment
and
to
waivers
or
amendments;
or
|
|
·
|
waive
a
redemption
payment
with
respect
to
any
debt
security
or
change
any
of
the
provisions
with
respect
to
the
redemption
of
any
debt
securities.
|
Except
for some specified provisions of the indenture, the holders of at least a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions
of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf
of the holders of all the debt securities of that series waive any past default under the indenture with respect to that series
and its consequences, except a default in the payment of the principal, premium or any interest with respect to any debt security
of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any
series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
The indenture
provides that, unless the terms of the applicable series of debt securities provide otherwise, we may defease such series of debt
securities. Upon defeasance, we may be discharged from any and all obligations under the debt securities of any series (except
for some obligations to register the transfer or exchange of debt securities of the series, to replace stolen, lost or mutilated
debt securities of the series, and to maintain paying agencies and certain provisions relating to the treatment of funds held
by paying agents) (“legal defeasance”) or we may be excused from compliance with certain restrictive covenants contained
in the indenture, as well as any additional covenants contained in a supplement to the indenture, a resolution of the Board of
Directors or an officers’ certificate delivered pursuant to the indenture (“covenant defeasance”). We will be
discharged, under either legal defeasance or covenant defeasance, on the 91
st
day after we deposit with the trustee,
in trust, money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through the payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants to
pay and discharge each installment of principal, premium and interest, and any mandatory sinking fund payments for the debt securities
of that series on the stated maturity in accordance with the terms of the indenture and those debt securities.
Legal
defeasance or covenant defeasance will be effective only if, among other things, we have delivered to the trustee an officers’
certificate and an opinion of counsel stating that holders of the debt securities of the series which we wish to defease will:
|
·
|
not
recognize
income,
gain
or
loss
for
United
States
federal
income
tax
purposes
as
a
result
of
the
deposit,
defeasance
and
discharge,
and
|
|
·
|
will
be
subject
to
United
States
federal
income
tax
on
the
same
amount
and
in
the
same
manner
and
at
the
same
times
as
would
have
been
the
case
if
the
deposit,
defeasance
and
discharge
had
not
occurred.
|
We may
exercise our legal defeasance option even though we have also exercised our covenant defeasance option.
Regarding
the Trustee
We will
identify the trustee with respect to any series of debt securities in the prospectus supplement relating to the applicable debt
securities. If the trustee becomes one of our creditors, it will be subject to limitations in the indenture on its rights to obtain
payment of claims or to realize on some property received for any such claim, as security or otherwise. The trustee is permitted
to engage in other transactions with us. If, however, it acquires any conflicting interest, it must eliminate that conflict or
resign.
The holders
of a majority in principal amount of the then outstanding debt securities of any series may direct the time, method and place
of conducting any proceeding for exercising any remedy available to the trustee.
If an
event of default occurs and is continuing, the trustee will be required to use the degree of care and skill of a prudent man in
the conduct of his own affairs. The trustee will become obligated to exercise any of its powers under the indenture at the request
of any of the holders of debt securities only after those holders have offered the trustee indemnity satisfactory to it.
Governing
Law
The indenture
and the debt securities will be governed by and construed under the laws of the State of Florida.
DESCRIPTION
OF UNITS
We may
offer two or more of the securities described in this prospectus in the form of a “unit,” including pursuant to a
unit agreement. The unit may be transferable only as a whole, or the securities comprising a unit may, as described in the prospectus
supplement, be separated and transferred by the holder separately. There may or may not be an active market or the underlying
securities, and not all the securities comprising a unit may be listed or traded on a securities exchange or market.
DESCRIPTION
OF WARRANTS
The following
summary of the terms of our warrants describes general terms that apply to the warrants. The particular terms of any warrants
will be described more specifically in the prospectus supplement relating to such warrants.
We may
issue warrants to purchase our common stock, preferred stock, debt securities, or other securities or any combination of the foregoing.
We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to
or separate from the other securities. We will issue warrants under one or more warrant agreements between us and a warrant agent
that we will name in the prospectus supplement.
The prospectus
supplement relating to any warrants we are offering will include specific terms relating to the offering. We will file the form
of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you.
The prospectus supplement will include some or all of the following terms:
|
·
|
the
title
of
the
warrants;
|
|
·
|
the
aggregate
number
of
warrants
offered;
|
|
·
|
the
designation,
number
and
terms
of
the
common
stock,
preferred
stock,
debt
securities,
or
other
securities
purchasable
upon
exercise
of
the
warrants,
and
procedures
that
will
result
in
the
adjustment
of
those
numbers;
|
|
·
|
the
exercise
price
or
prices
of
the
warrants;
|
|
·
|
the
dates
or
periods
during
which
the
warrants
are
exercisable;
|
|
·
|
the
designation
and
terms
of
any
securities
with
which
the
warrants
are
issued;
|
|
·
|
if
the
warrants
are
issued
as
a
unit
with
another
security,
the
date,
if
any,
on
and
after
which
the
warrants
and
the
other
security
will
be
separately
transferable;
|
|
·
|
if
the
exercise
price
is
not
payable
in
U.S.
dollars,
the
foreign
currency,
currency
unit
or
composite
currency
in
which
the
exercise
price
is
denominated;
|
|
·
|
any
minimum
or
maximum
amount
of
warrants
that
may
be
exercised
at
any
one
time;
|
|
·
|
any
terms,
procedures
and
limitations
relating
to
the
transferability,
exchange
or
exercise
of
the
warrants;
and
|
|
·
|
any
other
terms
of
the
warrants.
|
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding-up or to
exercise voting rights, if any.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
The following
summary describes the general terms and provisions of the subscription rights to purchase our common stock or other securities
that we may offer to our shareholders. Subscription rights may be issued independently or together with any other offered security
and may or may not be transferable by the person purchasing or receiving the subscription rights. Unless we are prohibited from
doing so by the applicable rules and regulations of the SEC (including the General Instructions to Form S-3) based on the aggregate
market value of our outstanding common equity held by non-affiliates, in connection with any subscription rights offering to our
shareholders, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant
to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such subscription
rights offering. Each series of subscription rights will be issued under a separate subscription rights agent agreement to be
entered into between us and a bank or trust company, as subscription rights agent, that we will name in the applicable prospectus
supplement. The subscription rights agent will act solely as our agent in connection with the certificates relating to the subscription
rights and will not assume any obligation or relationship of agency or trust for or with any holders of subscription rights certificates
or beneficial owners of subscription rights.
The prospectus
supplement relating to any subscription rights we offer will include specific terms relating to the offering, including, among
others:
|
·
|
the
securities
for
which
the
subscription
rights
are
exercisable;
|
|
·
|
the
exercise
price
for
such
subscription
rights;
|
|
·
|
the
number
of
such
subscription
rights
issued
to
each
shareholder;
|
|
·
|
the
number
of
shares
of
common
stock
or
amount
of
any
other
securities
purchasable
upon
exercise
of
such
subscription
rights;
|
|
·
|
the
extent,
if
any,
to
which
such
subscription
rights
are
transferable;
|
|
·
|
a
discussion
of
the
material
U.S.
federal
income
tax
considerations
applicable
to
the
issuance
or
exercise
of
such
subscription
rights;
|
|
·
|
the
date
on
which
the
right
to
exercise
such
subscription
rights
shall
commence,
and
the
date
on
which
such
rights
shall
expire
(subject
to
any
extension);
|
|
·
|
the
extent
to
which
such
subscription
rights
include
an
over-subscription
privilege
with
respect
to
unsubscribed
securities;
|
|
·
|
if
applicable,
the
material
terms
of
any
standby
underwriting
or
other
purchase
arrangement
that
we
may
enter
into
in
connection
with
the
subscription
rights
offering;
and
|
|
·
|
any
other
terms
of
such
subscription
rights,
including
terms,
procedures
and
limitations
relating
to
the
exercise
of
such
subscription
rights.
|
Each subscription
right will entitle the holder of the subscription right to purchase for cash the number of shares of our common stock or other
securities at an exercise price set forth in, or determinable as set forth in, the applicable prospectus supplement. Subscription
rights may be exercised at any time up to the close of business on the expiration date for the subscription rights provided in
the applicable prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights
will become void and of no further force or effect.
Holders
may exercise subscription rights as described in the applicable prospectus supplement. Upon receipt of payment and the subscription
rights certificate properly completed and duly executed at the corporate trust office of the subscription rights agent or any
other office indicated in the prospectus supplement, we will, as soon as practicable, issue the shares of common stock or other
security purchasable upon exercise of the subscription rights. Unless we are prohibited from doing so by the applicable rules
and regulations of the SEC (including the General Instructions to Form S-3) based on the aggregate market value of our outstanding
common equity held by non-affiliates, if less than all of the subscription rights issued in any subscription rights offering are
exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to or through agents, underwriters
or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable
prospectus supplement.
The description
in the applicable prospectus supplement and other offering material of any subscription rights we offer will not necessarily be
complete and will be qualified in its entirety by reference to the applicable subscription rights certificate, the form of which
will be filed with the SEC if we offer subscription rights. We urge you to read the form of subscription rights certificate, prospectus
supplement and other offering material in their entirety.
Transfer
Agent and Registrar
The transfer
agent and registrar for any warrant will be set forth in the applicable prospectus supplement.
ANTI-TAKEOVER
PROVISIONS IN
OUR ARTICLES OF INCORPORATION AND BYLAWS
The following
includes a brief description of certain of the provisions of our Articles of Incorporation and Bylaws. This description is subject
to and qualified in its entirety by reference to our Amended and Restated Articles of Incorporation, as amended, and Bylaws, as
amended, copies of which have been filed with the SEC and are also available upon request from us.
General
Our Amended
and Restated Articles of Incorporation and Bylaws contain certain provisions that deal with matters of corporate governance and
certain rights of shareholders which might be deemed to have a potential “anti-takeover” effect. These provisions
may have the effect of discouraging a future takeover attempt which is not approved by the Board of Directors but which individual
shareholders may deem to be in their best interest, or in which shareholders may receive a substantial premium for their shares
over then current market prices. As a result, shareholders who might desire to participate in such a transaction may not have
an opportunity to do so. Such provisions will also render the removal of an incumbent Board of Directors or management more difficult.
Governing
Documents
Certain
provisions of our Articles of Incorporation and Bylaws will impede changes in our change of control. For example, our Articles
of Incorporation permit our Board of Directors to issue preferred stock without shareholder action. The ability to issue preferred
stock could discourage a company from attempting to obtain control of us by means of a tender offer, merger, proxy contest or
otherwise. Other provisions in our Articles of Incorporation or Bylaws that may discourage takeover attempts or make them more
difficult include:
|
·
|
Supermajority
voting
requirements
to
remove
a
director
from
office;
|
|
·
|
Requirement
that
only
directors
may
fill
a
Board
vacancy;
|
|
·
|
Requirement
that
a
Special
Meeting
may
be
called
only
by
the
holders
of
a
majority
of
our
outstanding
shares;
|
|
·
|
Provisions
regarding
the
timing
and
content
of
shareholder
proposals
and
nominations;
|
|
·
|
Supermajority
voting
requirements
to
amend
our
Articles
of
Incorporation;
|
|
·
|
Absence
of
cumulative
voting;
and
|
|
·
|
Inability
for
shareholders
to
take
action
by
written
consent.
|
Banking
Law Anti-Takeover Provisions
Subject
to certain exceptions, the Bank Holding Company Act and the Change in Bank Control Act, together with the applicable regulations,
require Federal Reserve Board approval (or, depending on the circumstances, no notice of disapproval) prior to any person or company
acquiring “control” of a bank or bank holding company. A conclusive presumption of control exists if an individual
or company acquires the power, directly or indirectly, to direct the management or policies of an insured depository institution
or to vote 25% or more of any class of voting securities of any insured depository institution. A rebuttable presumption of control
exists if a person or company acquires 10% or more but less than 25% of any class of voting securities of an insured depository
institution and either the institution has registered securities under Section 12 of the Exchange Act, or no other person will
own a greater percentage of that class of voting securities immediately after the acquisition. Our common stock is registered
under Section 12 of the Exchange Act.
The Federal
Reserve Board maintains a policy statement on minority equity investments in banks and bank holding companies, that permits investors
to (1) acquire up to 33 percent of the total equity of a target bank or bank holding company, subject to certain conditions,
including (but not limited to) that the investing firm does not acquire 15 percent or more of any class of voting securities,
and (2) designate at least one director, without triggering the various regulatory requirements associated with control.
As a bank
holding company, we are required to obtain prior approval from the Federal Reserve Board before (i) acquiring all or substantially
all of the assets of a bank or bank holding company, (ii) acquiring direct or indirect ownership or control of more than 5% of
the outstanding voting stock of any bank or bank holding company (unless we own a majority of such bank’s voting shares),
or (iii) merging or consolidating with any other bank or bank holding company. In determining whether to approve a proposed bank
acquisition, federal bank regulators will consider, among other factors, the effect of the acquisition on competition, the public
benefits expected to be received from the acquisition, the projected capital ratios and levels on a post-acquisition basis, and
the acquiring institution’s record of addressing the credit needs of the communities it serves, including the needs of low
and moderate income neighborhoods, consistent with the safe and sound operation of the bank, under the Community Reinvestment
Act of 1977.
Under
Florida law, a person or entity proposing to directly or indirectly acquire control of a Florida bank must also obtain permission
from the Florida Office of Financial Regulation. Florida statutes define “control” as either (a) indirectly or directly
owning, controlling or having power to vote 25% or more of the voting securities of a bank; (b) controlling the election of a
majority of directors of a bank; (c) owning, controlling, or having power to vote 10% or more of the voting securities as well
as directly or indirectly exercising a controlling influence over management or policies of a bank; or (d) as determined by the
Florida Office of Financial Regulation. These requirements will affect us because 1
st
United Bank is chartered under
Florida law and changes in control of us are indirect changes in control of 1
st
United Bank.
PLAN
OF DISTRIBUTION
We may
sell these securities offered under this prospectus in public offerings through one or more underwriters or dealers, through other
agents, or directly to one or more purchasers or a combination thereof. Underwriters and agents in any distribution contemplated
hereby will be named in the applicable prospectus supplement. The terms of any distribution, including, but not limited to, “at
the market” equity offerings as defined in Rule 415 of the Securities Act, will also be set forth in the applicable prospectus
supplement. Underwriters or agents could make sales in privately negotiated transactions and/or any method permitted by law, including
sales deemed to be an “at the market” equity offerings, which includes sales made directly on or through the facilities
of the Nasdaq Global Select Market (the existing trading market for our common stock), or any other securities exchange or quotation
or trading service on which such securities may be listed, quoted or traded at the time of sale, or sales made to or through a
market maker other than on an exchange.
Underwriters,
dealers and agents that participate in the distribution of these securities may be underwriters as defined in the Securities Act
and any discounts or commissions received by them from us and any profit on the resale of these securities by them may be treated
as underwriting discounts and commissions under the Securities Act. Any underwriting compensation paid by us to underwriters or
agents in connection with the offering of securities, and any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the applicable prospectus supplement. In compliance with guidelines of the Financial
Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable
prospectus supplement. The prospectus supplement will also describe other terms of the offering, including the initial public
offering price, any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which these
securities may be listed.
The distribution
of these securities may occur from time to time in one or more transactions at a fixed price or prices, at market prices prevailing
at the time of sale, at prices related to the prevailing market prices or at negotiated prices.
This prospectus,
together with any applicable prospectus supplement, may also be used by our affiliates in connection with offers and sales of
the securities in market-making transactions at negotiated prices related to prevailing market prices at the time of sale. Such
affiliates may act as principals or agents in such transactions. None of our affiliates have any obligation to make a market in
the securities and each may discontinue any market-making activities at any time, without notice, at its sole discretion.
We may
have agreements with the underwriters, dealers and agents, including our affiliates, to indemnify them against certain civil liabilities,
including liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers, or
agents may be required to make as a result of those certain civil liabilities.
Any securities
issued hereunder (except the common stock) will be new issuances of securities with no established trading market. If we sell
a security offered by this prospectus to an underwriter for public offering and sale, the underwriter may make a market for that
security, but the underwriter will not be obligated to do so and could discontinue any market-making without notice at any time.
Therefore, we cannot give any assurances to you concerning the liquidity of any security offered by this prospectus.
Underwriters
and agents and their affiliates may be customers of, engage in transactions with, or perform services for us or our subsidiaries
in the ordinary course of their businesses. In connection with the distribution of the securities offered under this prospectus,
we may enter into swap or other hedging transactions with, or arranged by, underwriters or agents or their affiliates. These underwriters
or agents or their affiliates may receive compensation, trading gain, or other benefits from these transactions.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, certain legal matters will be passed upon for us by Gunster, Yoakley
& Stewart, P.A., West Palm Beach, Florida. Unless otherwise provided in the applicable prospectus supplement, certain legal
matters will be passed upon for any underwriters or agents by their own counsel.
EXPERTS
The consolidated
financial statements of 1
st
United Bancorp, Inc. and subsidiaries as of December 31, 2012 and 2011, and for each
of the years in the three-year period ended December 31, 2012
, and the effectiveness of
internal control over financial reporting as of December 31, 2012
have been audited by Crowe Horwath LLP, an independent
registered public accounting firm, as set forth in our Annual Report on Form 10K for the year ended December 31, 2012 as incorporated
by reference herein. Such consolidated financial statements have been so incorporated in reliance upon the report of Crowe Horwath
LLP, upon the authority of such firm as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The following
table sets forth the various expenses to be incurred in connection with the issuance and distribution of the securities being
registered. All amounts shown are estimates except the SEC registration fee.
SEC registration fee
|
|
$
|
19,320
|
|
Listing fees and expenses
|
|
|
*
|
|
Trustee’s fees and expenses
|
|
|
*
|
|
Transfer agent and registrar fees
|
|
|
*
|
|
Legal fees and expenses
|
|
|
*
|
|
Accounting fees and expenses
|
|
|
*
|
|
Rating agency fees
|
|
|
*
|
|
Printing fees and expenses
|
|
|
*
|
|
Miscellaneous expenses
|
|
|
*
|
|
|
|
|
|
|
Total Fees and Expenses
|
|
$
|
*
|
|
|
|
|
|
|
*These
fees are calculated based on the number of issuances and amount of securities offered and, accordingly, cannot be estimated at
this time.
Item
15. Indemnification of Directors and Officers.
We are
incorporated under the laws of the State of Florida. The Florida Business Corporation Act grants each corporation organized thereunder
the power to indemnify its officers, directors, employees and agents on certain conditions against liabilities arising out of
any action or proceeding to which any of them is a party by reason of being such officer, director, employee or agent. The Florida
Business Corporation Act permits a Florida corporation, with the approval of its shareholders, to include within its articles
of incorporation a provision eliminating or limiting the personal liability of its directors to such corporation or its shareholders
for monetary damages resulting from certain breaches of the directors’ fiduciary duty of care, both in suits by or on behalf
of the corporation and in actions by shareholders of the corporation.
Our Articles
of Incorporation and Bylaws include provisions that allow us to take advantage of such provisions of the Florida Business Corporation
Act. Our Articles of Incorporation and Bylaws also provide for the indemnification, to the fullest extent permitted by the Florida
Business Corporation Act, of our officers and directors. We currently maintain policies of insurance under which our directors
and officers are insured, within the limits and subject to the limitations of the policies, against specified expenses in connection
with the defense of actions, suits or proceedings to which they are parties by reason of being or having been such directors or
officers.
We have
entered into indemnification agreements with each of our directors, which may, in certain cases, be broader than the specific
indemnification provisions contained in our Articles of Incorporation and Bylaws. The indemnification agreements may require us,
among other things, to indemnify such directors against certain liabilities that may arise by reason of their status or service
as directors, officers, or employees of the Company and to advance the expenses incurred by such parties as a result of any threatened
claims or proceedings brought against them as to which they could be indemnified.
It is
the position of the SEC that indemnification of directors and officers for liabilities arising under the Securities Act is against
public policy and is unenforceable pursuant to Section 14 of the Securities Act.
Item
16. Exhibits
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement or Distribution Agreement
*
|
3.1
|
|
Amended
and Restated Articles of Incorporation of the Registrant - incorporated herein by reference to Exhibit 3.1 of the Registrant’s
Quarterly Report on Form 10-Q (filed 7/22/08) (No. 000-1415277)
|
3.2
|
|
Amendment
to the 1
st
United Bancorp, Inc. Amended and Restated Articles of Incorporation – incorporated herein by reference
to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (filed 5/28/09) (No. 000-1415277)
|
3.3
|
|
Amendment
to the 1
st
United Bancorp, Inc. Amended and Restated Articles of Incorporation– incorporated herein by reference
to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (filed 12/9/09) (No. 000-1415277)
|
3.4
|
|
Bylaws
of the Registrant – incorporated herein by reference to Exhibit 3.1 of the Registrant’s Current Report on Form
8-K (filed 1/30/12) (No. 001-34462)
|
3.5
|
|
Form
of Articles of Amendment to Articles of Incorporation Establishing a Series of Preferred Stock
*
|
4.1
|
|
Form
of Preferred Stock Certificate
*
|
4.2
|
|
Form
of Indenture
**
|
4.3
|
|
Form
of Debt Security
*
|
4.4
|
|
Form
of Warrant Agreement and Warrant Certificate
*
|
4.5
|
|
Form
of Unit Agreement
*
|
5.1
|
|
Opinion
of Gunster, Yoakley & Stewart, P.A.
**
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges
**
|
23.1
|
|
Consent
of Crowe Horwath LLP
**
|
23.2
|
|
Consent
of Gunster, Yoakley & Stewart, P.A. (included in Exhibit 5.1 filed herewith)
|
24.1
|
|
Powers
of Attorney (included in the signature pages to the Registration Statement)
|
25.1
|
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended
*
|
|
*
|
To
be
filed
by
amendment
or
as
an
exhibit
to
a
document
incorporated
by
reference
herein.
|
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act
of 1933”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided, however,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that
are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of this registration statement.
2) That,
for the purposes of determining any liability under the Securities Act of 1933, each post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial
bona fide
offering thereof.
3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) each
prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose
of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
5) That,
for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) the
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv) any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of
the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) With
respect to any warrants or rights offering, the registrant hereby undertakes to supplement the prospectus, after the expiration
of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the
subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover
page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(d) The
registrant hereby undertakes that:
1) For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)
(1)
or
(4)
or
497(h)
under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared effective.
2) For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(e) The
registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act (“Trust Indenture Act”) in accordance with the rules and
regulations prescribed by the SEC under section 305(b) 2 of the Trust Indenture Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Boca Raton, State of Florida, on October 30, 2013.
|
|
|
|
1
ST
UNITED BANCORP,
INC.
|
|
|
|
By:
|
/s/
Rudy E. Schupp
|
|
|
Rudy E. Schupp
|
|
|
Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS
, that each person whose signature appears below hereby severally constitutes and appoints John
Marino, Warren S. Orlando, and Rudy E. Schupp and each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for him or her and in his or her name, place and stead, in any and all capacities to
sign any and all amendments (including post-effective amendments) to the registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
or necessary fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that
each said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities on the date indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Rudy E Schupp
|
|
Chief
Executive Officer and Director
|
|
October
30, 2013
|
Rudy
E. Schupp
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/
John Marino
|
|
President
and Chief Financial Officer and Director
(Principal Financial and Accounting Officer)
|
|
October
30, 2013
|
John
Marino
|
|
|
|
|
|
/s/
Warren S. Orlando
|
|
Chairman
of the Board
|
|
October
30, 2013
|
Warren
S. Orlando
|
|
|
|
|
|
|
|
|
|
/s/
Paula Berliner
|
|
Director
|
|
October
30, 2013
|
Paula
Berliner
|
|
|
|
|
|
|
|
|
|
/s/
Derek C. Burke
|
|
Director
|
|
October
30, 2013
|
Derek
C. Burke
|
|
|
|
|
|
|
|
|
|
/s/
Jeffery L. Carrier
|
|
Director
|
|
October
30, 2013
|
Jeffery
L. Carrier
|
|
|
|
|
|
|
|
|
|
/s/
Ronald A. David
|
|
Director
|
|
October
30, 2013
|
Ronald
A. David
|
|
|
|
|
|
|
|
|
|
/s/
James D. Evans
|
|
Director
|
|
October
30, 2013
|
James
D. Evans
|
|
|
|
|
|
|
|
|
|
/s/
Arthur S. Loring
|
|
Director
|
|
October
30, 2013
|
Arthur
S. Loring
|
|
|
|
|
|
|
|
|
|
/s/
Thomas E. Lynch
|
|
Director
|
|
October
30, 2013
|
Thomas
E. Lynch
|
|
|
|
|
|
|
|
|
|
/s/
Carlos Morrison
|
|
Director
|
|
October
30, 2013
|
Carlos
Morrison
|
|
|
|
|
|
|
|
|
|
/s/
Joseph W. Veccia, Jr.
|
|
Director
|
|
October
30, 2013
|
Joseph
W. Veccia, Jr.
|
|
|
|
|
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
|
1.1
|
|
Form
of Underwriting Agreement or Distribution Agreement
*
|
3.1
|
|
Amended
and Restated Articles of Incorporation of the Registrant - incorporated herein by reference to Exhibit 3.1 of the Registrant’s
Quarterly Report on Form 10-Q (filed 7/22/08) (No. 000-1415277)
|
3.2
|
|
Amendment
to the 1
st
United Bancorp, Inc. Amended and Restated Articles of Incorporation – incorporated herein by reference
to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (filed 5/28/09) (No. 000-1415277)
|
3.3
|
|
Amendment
to the 1
st
United Bancorp, Inc. Amended and Restated Articles of Incorporation– incorporated herein by reference
to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (filed 12/9/09) (No. 000-1415277)
|
3.4
|
|
Bylaws
of the Registrant – incorporated herein by reference to Exhibit 3.1 of the Registrant’s Current Report on Form
8-K (filed 1/30/12) (No. 001-34462)
|
3.5
|
|
Form
of Articles of Amendment to Articles of Incorporation Establishing a Series of Preferred Stock
*
|
4.1
|
|
Form
of Preferred Stock Certificate
*
|
4.2
|
|
Form
of Indenture
**
|
4.3
|
|
Form
of Debt Security
*
|
4.4
|
|
Form
of Warrant Agreement and Warrant Certificate
*
|
4.5
|
|
Form
of Unit Agreement
*
|
5.1
|
|
Opinion
of Gunster, Yoakley & Stewart, P.A.
**
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges
**
|
23.1
|
|
Consent
of Crowe Horwath LLP
**
|
23.2
|
|
Consent
of Gunster, Yoakley & Stewart, P.A. (included in Exhibit 5.1 filed herewith)
|
24.1
|
|
Powers
of Attorney (included in the signature pages to the Registration Statement)
|
25.1
|
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended
*
|
|
*
|
To
be
filed
by
amendment
or
as
an
exhibit
to
a
document
incorporated
by
reference
herein.
|
(MM) (NASDAQ:FUBC)
Historical Stock Chart
From May 2024 to Jun 2024
(MM) (NASDAQ:FUBC)
Historical Stock Chart
From Jun 2023 to Jun 2024