Filed Pursuant to Rule 433
Issuer Free Writing Prospectus dated August 10, 2009
Relating to Preliminary Prospectus dated August 10, 2009
Registration Statement No. 333-160133
Entry into Letter of Intent with CapGen Financial Partners
On August 10, 2009, we executed a letter of
intent with CapGen Financial Partners. As a result, we reduced the size of the
Underwriting Offering (as defined below) from 34,500,000 to 28,500,000 shares, plus an
overallotment option of up to 4,275,000 shares. The
preliminary prospectus dated August 6, 2009 is hereby supplemented as set forth below.
PROSPECTUS SUMMARY
CapGen Offering
On August 10, 2009, we executed a letter of intent with CapGen Financial Partners, or CapGen,
following confidential discussions and diligence about possible alternatives to a public offering,
pursuant to which we agreed to sell to CapGen, or a designated affiliate of CapGen, six million
shares of our common stock, at the same price at which shares are offered to the public in the
previously announced offering, or the “Underwritten Offering,” at a price up to $2.50 per share, or
the “CapGen Offering.” CapGen has completed its due diligence, and the letter of intent with
CapGen is subject to the execution and delivery of a definitive stock purchase agreement and the
registration statement covering the shares offered in the Underwritten Offering and the CapGen
Offering becoming effective. The closing of the CapGen Offering is contingent upon the receipt of
necessary regulatory approvals, closing of the Underwritten Offering
and shareholder (if any) approvals. CapGen has agreed to promptly
submit all required regulatory applications and notices, which will also seek approval for CapGen
to increase its ownership in our company over time. Upon the closing of the CapGen Offering,
CapGen will be entitled to appoint one director to our board of directors. We have also agreed to
grant CapGen preemptive rights with respect to future offerings of our
common stock to purchase its pro rata share for a period
of 24 months. The board seat and preemptive rights are subject to CapGen retaining ownership of
all shares purchased in the CapGen Offering. CapGen has indicated that its affiliate that will
purchase and hold shares of our common stock will not control any
other depository institution.
RISK FACTORS
Risks Related to the CapGen Offering
The CapGen Offering may not be consummated and the interests of CapGen may be adverse to other
holders of our common stock.
On August 10, 2009, we executed a letter of intent with CapGen relating to the CapGen
Offering. While CapGen has agreed to submit all necessary regulatory applications and notices
within ten days following the closing of this offering, we can make no assurance as to when CapGen
will receive the necessary regulatory approvals, or whether such approvals will be received. In
addition, the letter of intent is not binding on either CapGen or us until the registration
statement becomes effective and is subject to the execution of a definitive stock purchase
agreement with CapGen and its designated affiliate, the SEC declaring our registration statement
effective in connection with the pricing of our Underwritten Offering, the closing of our
Underwritten Offering, and to prior regulatory and shareholder (if any) approvals. Many of
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these are not within our control. As a result, we can make no assurance that the CapGen
Offering will be consummated on the terms currently contemplated or at all.
Further, pursuant to the letter of intent with CapGen, we have agreed that, upon consummation
of the CapGen Offering, CapGen will have the ability to appoint a director to our board of
directors. In addition, we have agreed to grant CapGen certain preemptive rights for 24 months
following the closing of the CapGen Offering, and CapGen has agreed to seek regulatory approval to
permit additional ownership in us in the future that may increase CapGen’s interest and lead to
control of us. If, and as CapGen increases its ownership interest in us through these preemptive
rights, or otherwise, they may become a controlling shareholder in our company. CapGen may have
interests different from other holders of our common stock and may act in a manner inconsistent
with what other holders may believe desirable, either as a result of the director they will be able
to appoint or as a result of their future ownership of our common stock.
DESCRIPTION OF CAPITAL STOCK
Common Stock
Capitalization Following the Offering
Following the offering, we expect to have an insignificant number of authorized and unreserved
shares of common stock available for future issuance. We expect to seek shareholder approval to
increase our authorized shares substantially following the offering.
Voting Rights
Each outstanding share of our common stock entitles the holder to one vote on all matters
submitted to a vote of shareholders, including the election of directors. The holders of our common stock possess
exclusive
voting power, except as otherwise provided by law or by articles of amendment establishing any
series of our
preferred stock, including the voting rights held by holders of our Series A Preferred Stock.
There is no cumulative voting in the election of directors, which means that the holders of a
plurality of
our outstanding shares of common stock can elect all of the directors then standing for election.
Upon the
closing of the CapGen Offering, CapGen will be entitled to appoint one director to our board of
directors, so
long as they retain ownership of all six million shares of common stock purchased in the CapGen
Offering.
When a quorum is present at any meeting, questions brought before the meeting will be decided by
the vote of
the holders of a majority of the shares present and voting on such matter, whether in person or by
proxy,
except when the meeting concerns matters requiring the vote of the holders of a majority of all
outstanding
shares under applicable Florida law. Our Articles of Incorporation provide certain anti-takeover
provisions that
require super-majority votes, which may limit shareholders’ rights to effect a change in control as
described under the section below entitled “Anti-takeover Effects of Certain Articles of
Incorporation Provisions.”
Dividends, Liquidation and Other Rights
Holders of shares of common stock are entitled to receive dividends only when, as and if
approved by our board of directors from funds legally available for the payment of dividends, after
payment of dividends on our outstanding series of preferred stock. Our shareholders are entitled
to share ratably in our assets legally available for distribution to our shareholders in the event
of our liquidation, dissolution or winding up, voluntarily or involuntarily, after payment of, or
adequate provision for, all of our known debts and liabilities and of any preferences of Series A
Preferred Stock or any other series of our preferred stock that may be outstanding in the future.
These rights are subject to the preferential rights of any other series of our preferred stock that
may then be outstanding.
Holders of shares of our common stock have no preference, conversion, exchange, sinking fund
or redemption rights and have no preemptive rights to subscribe for any of our securities.
However, we have agreed, in principle with CapGen, subject to various conditions described above,
to grant certain preemptive rights to CapGen for a period of 24 months following the closing of the
CapGen Offering, as long as CapGen holds all shares of common stock purchased by it in the CapGen
Offering. Our board of directors, under our articles of incorporation, otherwise may issue
additional shares of our common stock or rights to purchase shares of our common stock without the
approval of our shareholders.
UNDERWRITING
Our Relationship with the Underwriters
Fox-Pitt Kelton Cochran Caronia Waller (USA) LLC is serving as the exclusive placement agent in
connection with the CapGen Offering.
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