BayFirst Financial Corp S-1, filed Apr 30, 2026
BayFirst Financial Corp. (BAFN)
S-1
2026-04-30
View Original
Added on
October 16, 2026
As filed with the Securities and Exchange Commission on April 30, 2026
Registration No. 333-[______]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BAYFIRST FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
Florida | 6022 | 59-3665079 | ||||||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) | ||||||
St. Petersburg, Florida 33701
(727) 440-6848
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Scott J. McKim
Chief Financial Officer
BayFirst Financial Corp.
700 Central Avenue
St. Petersburg, Florida 33701
(Name, address, including zip code, and telephone number, including area code of agent for service)
Copies of all communications, including copies of all communications sent to agent for service, should be sent to:
Richard Pearlman, Esq. Igler and Pearlman, P.A. 3122 Mahan Drive Suite 801-180 Tallahassee, Florida 32308 | Mark C. Kanaly, Esq. Willliam W. Hooper, Esq. Alston & Bird LLP 1201 West Peachtree Street Atlanta, GA 30309 | ||||
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
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 check the following box: ■
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: □
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: □
If this Form is a post-effective amendment filed pursuant to Rule 462(d) 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: □
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | o | Accelerated filer | o | |||||||||||
Non-accelerated filer | x | Smaller reporting company | x | |||||||||||
Emerging growth company | x | |||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. □
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 which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The securities may not be sold until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated April 30, 2026
BayFirst Financial Corp.
Up to 4,108,072 Shares of Common Stock
We are offering to our shareholders of record as of May 12, 2026, up to 4,108,072 shares of our common stock at a price of $3.50 per share. On April 28, 2026, we sold $80,000,000 in convertible preferred stock at an effective $3.50 per share of common stock. You may submit a subscription for one share for each share you owned as of May 12, 2026. However, if you purchased shares in the private placement, you may not participate in this offering. If all shares are purchased, the total purchase price of the shares offered in this offering and gross proceeds we receive, before expenses, would be $14.38 million.
We must receive your subscription by 5:00 p.m., Eastern time, on __, 2026. However, we have the option to extend the offering and the period for submitting your subscription for a period not to exceed 30 days, although we do not presently intend to do so. Pending closing of this offering, subscription funds will be held in escrow by an escrow agent. You should carefully consider whether to submit a subscription prior to the expiration of the offering. All subscriptions are irrevocable, even if the offering is extended by our Board of Directors. However, if we amend the offering to allow for an extension of the offering for a period longer than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of your subscription funds, without interest or deduction.
We have engaged Hovde Group, LLC to act as our sales agent in this offering. The sales agent will act on a “best efforts” basis. Therefore, they are not required to sell any specific number or dollar amount of securities but will use their best efforts to sell the securities offered. Because the offering is not underwritten by a broker-dealer on a firm commitment basis, there can be no assurance that any shares of common stock we are offering will be sold. We will pay the sales agent a commission equal to 2% of the gross proceeds of this offering.
Per share | Total(2) | |||||||
Public offering price | $3.50 | $14,378,252 | ||||||
Sales agent fees(1) | $0.07 | $287,565 | ||||||
Proceeds to us, before expenses | $3.43 | $14,090,687 | ||||||
(1) In connection with the offering, we have agreed to pay Hovde Group, LLC as sales manager a commission equal to 2% of the gross proceeds of this offering. See “Plan of Distribution”.
(2) Assumes the offering is fully subscribed.
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Our Board of Directors makes no recommendation regarding your investment in this offering. Your ability to submit a subscription may not be sold, transferred, or assigned and will not be listed for trading on any stock exchange or market, specifically including the Nasdaq Capital Market.
Our Board of Directors may cancel the offering at any time prior to its expiration for any reason. In the event the offering is cancelled, all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable.
Shares of our common stock are traded on the Nasdaq Capital Market under the symbol “BAFN.” On April 29, 2026, the closing sales price for our common stock was $8.00 per share. The shares of common stock issued in this offering will also trade on the Nasdaq Capital Market under the same symbol.
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 18, as well as the other information relating to risks in documents we incorporate by reference into this prospectus to read about important factors you should consider before investing in our common stock.
Neither the Securities and Exchange Commission, or SEC, nor any state securities regulator have approved or disapproved these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
As permitted under the rules of the SEC, this prospectus incorporates important business information about BayFirst Financial Corp. that is contained in documents that we file with the SEC, but that are not included in or delivered with this prospectus. You may obtain copies of these documents, without charge, from the website maintained by the SEC at www.sec.gov, as well as other sources. See “Where You Can Find Additional Information” in this prospectus.
Sales Manager
HOVDE GROUP, LLC
The date of this prospectus is _____________, 2026
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TABLE OF CONTENTS
Page | |||||
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement on Form S-1 that we filed with the SEC using a continuous offering process. Under this process, during the offering period, we may sell the common stock covered by this prospectus in the manner described in the section titled “Plan of Distribution.” Additionally, we may provide a prospectus supplement to add information to, or update or change information contained in, this prospectus, including the section titled “Plan of Distribution.” You may obtain this information without charge by following the instructions under the section titled “Where You Can Find Additional Information” appearing elsewhere in this prospectus. You should read this prospectus and any prospectus supplement before deciding to invest in our common stock.
The information contained in this prospectus, or any free writing prospectus prepared by us or on our behalf or to which we refer you, is accurate only as of its date, regardless of the time of delivery of this prospectus or of any sale of our common stock. Our assets, business, cash flows, financial condition, liquidity, prospects or results of operations may have changed since that date.
You should not interpret the contents of this prospectus, or any free writing prospectus prepared by us or on our behalf or to which we refer you, to be legal, business, investment or tax advice. You should consult with your own advisors for that type of advice and consult with them about the legal, tax, business, financial and other issues that you should consider before investing in our common stock.
We have not authorized anyone to provide any information to you other than that contained in this prospectus or in any free writing prospectus prepared by us or on our behalf to which we refer you. We take no responsibility for, nor provide any assurance as to the reliability of, any other information that others may give you. Information contained on, or accessible through, our website is not part of this prospectus.
No action is being taken in any jurisdiction outside the United States to permit a public offering of our securities or possession or distribution of this prospectus in that jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside the United States are required to inform themselves about, and to
observe, any restrictions as to the offering and the distribution of this prospectus applicable to those jurisdictions. We are not making an offer of these securities in any jurisdiction where such offer is not permitted.
As used in this prospectus, “BayFirst,” the “Company,” “we,” “us” and “our” refer to BayFirst Financial Corp., and the “Bank” refers to BayFirst National Bank, unless stated otherwise or the context requires otherwise.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. Words such as “may,” “could,” “should,” “would,” “believe,” “anticipate,” “estimate,” “expect,” “intend,” “plan,” “project,” “is confident that” and similar expressions constitute “forward-looking statements.” Forward-looking statements involve risk and uncertainty and a variety of factors that could cause our actual results and experience to differ materially from the anticipated results or other expectations expressed or implied in these forward-looking statements. We do not have a policy of updating or revising forward-looking statements except as required by law, and silence by management over time should not be construed to mean that actual events are occurring as estimated in such forward-looking statements.
Our ability to predict results or the actual effect of future plans or strategies is inherently uncertain. Factors that could have a material adverse effect on our operations and the operations of our subsidiary, BayFirst National Bank, include, but are not limited to, changes in:
•market interest rates and general economic conditions,
•legislative/regulatory changes,
•monetary and fiscal policies of the U.S. Government,
•the quality and composition of the loan or investment portfolios,
•demand for loan and deposit products,
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•competition,
•demand for financial services in our primary trade area,
•litigation, tax and other regulatory matters,
•accounting principles and guidelines, and
•other economic, competitive, governmental, regulatory and technological factors affecting our operations, pricing and services.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC’s rules allow us to “incorporate by reference” into this prospectus certain information that we file with the SEC. This means that we can include in this prospectus information by referring you to another document already on file with the SEC that contains that information. Any information incorporated by reference into this prospectus is considered to be part of this prospectus.
We incorporate by reference the following documents filed with the SEC:
•Our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed on March 27, 2026;
•Our Current Reports on Form 8-K filed on January 6, 2026, February 13, 2026, March 31, 2026, and April 30, 2026.
In addition, all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering shall be deemed to be incorporated by reference into this prospectus.
We will provide to each person, including any beneficial owner of shares of our common stock, to whom a prospectus is delivered, a copy of any or all of the reports or documents that have been incorporated by reference in the prospectus contained in the registration statement but not delivered with the prospectus. We will provide such reports or documents upon written or oral request, at no cost to the requester. Requests for such items should be made to Chief Financial Officer, Scott J. McKim, at (727) 440-6848.
You may also access these documents at our website, www.bayfirstfinancial.com.
IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY
The Jumpstart Our Business Startups Act (the “JOBS Act”), was enacted in April 2012 with the intention of encouraging capital formation in the United States and reducing the regulatory burden on newly-public companies that qualify as “emerging growth companies.” We are an “emerging growth company” within the meaning of the JOBS Act. As an emerging growth company, we intend to take advantage of certain exemptions from various public reporting requirements, including the requirement that our internal control over financial reporting be audited by our independent registered public accounting firm pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), certain requirements related to the disclosure of executive compensation in this prospectus and in our periodic reports and proxy statements, and the requirement that we hold a non-binding advisory vote on executive compensation and any golden parachute payments. We may take advantage of these exemptions until we are no longer an emerging growth company.
In addition, under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We intend to avail ourselves of this exemption from new or revised accounting standards. Accordingly, we will not be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
We will remain an emerging growth company until the earliest to occur of: (i) the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; (ii) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates; (iii) the date on which we have issued, in any three-
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year period, more than $1.0 billion in non-convertible debt securities; and (iv) the last day of the fiscal year ending after the fifth anniversary of the listing of our common stock on Nasdaq.
For certain risks related to our status as an emerging growth company, see the sections titled “Risk Factors,” and “We are an emerging growth company, as well as the other information relating to risks in documents we incorporate by reference into this prospectus and the reduced disclosure requirements applicable to emerging growth companies may make our common stock less attractive to investors.”
PROSPECTUS SUMMARY
This summary highlights information contained in or incorporated by reference into this prospectus. This summary may not contain all of the information that you should consider before deciding whether or not you should submit a subscription. You should read this entire prospectus carefully, including the “Risk Factors” contained in this prospectus, the “Risk Factors” contained in the documents incorporated by reference herein, and our consolidated financial statements and the related notes and the other documents incorporated by reference herein, before making an investment decision. Some of the statements in this prospectus constitute forward-looking statements. See “Cautionary Note Regarding Forward-Looking Information.”
BayFirst Financial Corp.
BayFirst Financial Corp. is a bank holding company that operates through its wholly owned subsidiary, BayFirst National Bank. BayFirst commenced its bank holding company operations on September 1, 2000, by acquiring all shares of the Bank. BayFirst’s primary source of income is from the Bank, which serves a broad spectrum of consumers and small businesses in the Tampa Bay/Sarasota region. BayFirst strives to be a progressive institution in its products and services, technology, design, and social responsibility. As of December 31, 2025, BayFirst had consolidated total assets of $1.30 billion, total loans held for investment of $963.9 million, total deposits of $1.18 billion, and total shareholders’ equity of $87.6 million.
BayFirst’s corporate office is located at the BayFirst Executive Center, 700 Central Avenue, St. Petersburg, Florida 33701, and our telephone number is (727) 440-6848. We maintain a website at www.bayfirstfinancial.com. This reference to our website is included for the convenience of investors only and our website and the information contained therein or limited thereto is not incorporated into this prospectus or the registration statement.
BayFirst National Bank
The Bank commenced operations on February 12, 1999, as a Florida state-chartered commercial bank. In 2022, the Bank converted its charter to a national banking association. The Bank currently operates out of its main office and eleven additional banking centers located in the Tampa Bay/Sarasota area. The Bank’s main office is located at the BayFirst Executive Center. The Bank does not engage in any foreign business activities. The Bank offers its products and services through its community banking centers. In the third quarter of 2025, the Bank discontinued its Small Business Administration ("SBA") 7(a) lending division.
Community Banking
The Bank has structured its community banking services and charges for such services in a manner designed to attract consumers, small and medium sized businesses, and professionals located primarily in Pinellas, Hillsborough, Sarasota, Manatee, and Pasco Counties. The Bank focuses on customers that are seeking the flexibility and personalized relationships that a community bank can provide. The Bank offers specialized business and personal checking accounts, internet banking and online bill payment, lock box services, remote capture and deposit, cash management, wire transfers, safety deposit boxes, courier services, and Automatic Clearing House originations, among other services.
The Bank also offers customary community bank deposit products, including interest-bearing and noninterest-bearing checking accounts, money market deposit accounts ("MMDA"), savings accounts, certificates of deposit and Individual Retirement Accounts. The consumer product offering also includes unique programs, including, among others: 1) the Essential checking that assists customers in rebuilding their access to the banking system, 2) the
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TrendSetters Club which offers special benefits for those customers age 50+ years, and 3) the Cash Kids’ Club savings account that offers those age 12 and under special rates while teaching children basic financial skills through interactive and mobile application tools. The Bank’s business deposit products and related services include free checking accounts, interest-bearing checking accounts, savings accounts, MMDA, and access to business mobile and online banking, treasury management, cash management, merchant processing services, lock box services, remote deposit capture, and night depository.
A wide range of loans are also offered, including commercial, consumer, and real estate loans. The commercial lending efforts are directed principally toward businesses and professionals who otherwise do business with us, and include commercial real estate mortgages, construction and development loans, working capital loans, and business expansion loans. BayFirst focuses on providing the customer quick turnaround, competitive rates, and an easy application process. The Bank offers personal lines of credit, auto, boat, and recreational vehicle loans, residential mortgages, and home equity lines of credit. The Bank has been particularly successful in penetrating the small business community.
As of December 31, 2025, the Bank operated from twelve banking centers in the Tampa Bay area: five in Pinellas County, two in Hillsborough County, one in Manatee County, and four in Sarasota County.
Recent Developments
Private Placement
On April 28, 2026, the Company entered into a Securities Purchase Agreement with Kenneth R. Lehman and other investors (each, a “Purchaser” and collectively, the “Purchasers”). Pursuant to the Securities Purchase Agreement, on that same date, the Company issued and sold to the Purchasers, in the aggregate:
(i) 4,000 shares (the “Series D Shares”) of the Company’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series D, no par value (the “Series D Preferred Stock”), at a purchase price of $10,000 per Series D Share; and
(ii) 4,000 shares (the “Series E Shares” and together with the Series D Shares, the “Preferred Shares”) of the Company’s Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series E, no par value, at a purchase price of $10,000 per Series E Share,
in a private placement (the “Private Placement”), for gross proceeds of $80,000,000.
Subject to certain ownership limitations, the Preferred Shares are convertible (or, in the case of Mr. Lehman, as provided pursuant to the Exchange Agreement described herein exchangeable) into shares of Common Stock (the “Underlying Preferred Shares”) at the initial conversion rate of 2,857 shares of Common Stock per Preferred Share, which conversion rate is based on an initial conversion price of $3.50 per share of Common Stock and is subject to certain adjustments (the “Conversion Rate”).
Pursuant to the terms of the Securities Purchase Agreement, Mr. Lehman is entitled to designate one individual to be appointed to the Company’s and the Bank’s boards of directors, subject to any required regulatory approvals, waivers, or non-objections. Mr. Lehman has also been granted gross-up rights to acquire from the Company any equity or equity-linked securities (with certain exceptions) offered by the Company in order to enable him to maintain his proportionate ownership interest in the Company as immediately prior to such issuance.
The Bank and Mr. Lehman will work together to identify specific work-out assets and develop and adopt a mutually agreeable asset resolution plan pursuant to which the Bank will accelerate its work-out strategy with respect to those identified assets.
Shareholder Approvals
The Company will use its reasonable best efforts to hold a shareholder meeting in July 2026, to obtain shareholder approval of:
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(i) an amendment to the Company’s articles of incorporation to increase the number of authorized shares of Common Stock to at least 100,000,000 shares (the “Articles Amendment Approval”); and
(ii) the issuance of the Underlying Preferred Shares pursuant to applicable listing standards of the The Nasdaq Stock Market LLC (the “Issuance Approval” and together with the Articles Amendment Approval, the “Stockholder Approvals”).
If either of the Stockholder Approvals are not obtained at the initial shareholder meeting called by the Company, then the Company will include proposals to approve such Stockholder Approvals at a meeting of its shareholders no less than once in each subsequent three-month period beginning on the date of such previous shareholder meeting until such approval is obtained. If the Company does not obtain the Stockholder Approvals by December 15, 2026, it will be obligated to pay an 11% cumulative dividend on the Preferred Shares.
In the event that the Company has obtained the Issuance Approval but the Company’s shareholders have not approved the Articles Amendment Approval, the Company will effect a “Partial Conversion” of the Series D Preferred Stock, whereby outstanding shares of Series D Preferred Stock will automatically convert into shares of Common Stock, but only to the extent of the total number of shares of Common Stock available for issuance by the Company pursuant to its then effective articles of incorporation (taking into consideration any shares previously reserved for issuance), allocated pro rata among the holders of the Series D Preferred Stock and the Series E Preferred Stock.
Registration Rights Agreement
Simultaneous with entering into the Securities Purchase Agreement, the Company and the Purchasers entered into a Registration Rights Agreement (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, the Company will register for resale the Common Shares and the Underlying Preferred Shares (collectively, the “Registrable Securities”). The Company has agreed to file with the Securities and Exchange Commission (the “SEC”) a registration statement registering the Registrable Securities for resale by the Purchasers by the earliest of:
(i) 30 days after the Stockholder Approvals;
(ii) 30 days after the Partial Conversion; and
(iii) December 15, 2026.
The Company shall use its commercially reasonable efforts to cause such registration statement to be declared effective by the SEC and to keep such registration statement effective until the earlier of:
(i) such time as all of the Registrable Securities covered by such registration statement have been publicly sold by the holders thereof; and
(ii) the date on which all Common Shares and Underlying Preferred Shares cease to be Registrable Securities.
If the Company fails to file the registration statement or have it declared effective by certain deadlines, if the registration statement ceases to remain effective, subject to specified grace periods, or if the Company fails to satisfy the current public information requirement of Rule 144(c)(1) under the Securities Act of 1933, as amended (the “Securities Act”), then the Company will pay monthly liquidated damages to the holders of Registrable Securities in an amount 1.0% of the aggregate purchase price paid by such Purchaser pursuant to the Securities Purchase Agreement for any unregistered Registrable Securities then held by such Holder, subject to certain caps and limitations. The Company will pay all fees and expenses incident to the Company’s performance of its obligations under the Registration Rights Agreement, excluding (with certain exceptions) any underwriting discounts, selling commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals and all legal fees and expenses of legal counsel for any holder of Registrable Securities. The Company and the Purchasers agreed to provide each other with certain indemnification and contribution rights.
Exchange Agreement
Simultaneous with entering into the Securities Purchase Agreement, the Company and Mr. Lehman entered into an Exchange Agreement, whereby the Company agreed under certain conditions to issue shares of Common Stock in exchange for Series E Shares held by Mr. Lehman. Each exchange is subject to the Stockholder Approvals and
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Mr. Lehman obtaining the necessary approvals and authorizations of, filings and registrations with, notifications to, or expiration or termination of any applicable waiting period under, the Change in Bank Control Act.
The representations, warranties, and covenants of the Company set forth in the Securities Purchase Agreement and the Exchange Agreement have been made only for purposes of, and were and are solely for the benefit of the parties to, the Securities Purchase Agreement and the Exchange Agreement, may be subject to limitations agreed upon by the contracting parties and standards of materiality applicable to the contracting parties that differ from those applicable to investors. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time, and investors should not rely on them as statements of fact. In addition, such representations and warranties, unless otherwise specified therein, were made only as of the date of the Securities Purchase Agreement and the Exchange Agreement, and information concerning the subject matter of the representations and warranties may change after the date of the Securities Purchase Agreement and the Exchange Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Bank Chief Executive Officer and President
On April 28, 2026, the Bank appointed Alfred T. (“Al”) Rogers, Jr. to serve as its President and Chief Executive Officer, and as a member of its board of directors. Subject to the non-objection of the Federal Reserve Bank of Atlanta, the Company intends to appoint Mr. Rogers to serve as its President and Chief Executive Officer, and as a member of its board of directors.
Mr. Rogers, age 61, and began his banking career at First Union National Bank. Upon completion of that bank’s training program, he served as a Commercial Banker in the Tampa, Lakeland, and Nashville markets from 1987 to 1997. In 1997, Mr. Rogers joined Manufacturers Bank of Florida in Tampa, where he served as Chief Executive Officer and a member of its board of directors. During this time, he was involved in all aspects of expanding the bank through organic growth as well as the acquisition of Partners Savings Bank of Tampa. In 2001, Mr. Rogers was instrumental in selling Manufacturers Bank of Florida to Colonial Bank and began serving Colonial Bank as President and Senior Lender of the Tampa Bay market. Mr. Rogers joined USAmeriBank in 2007 as its Executive Lending Officer. Under his leadership, that bank grew from its 2007 de novo status to the Tampa Bay area’s largest independent community bank, with assets of more than $4.6 billion. Upon the acquisition of USAmeriBank by Valley National Bank in January 2018, Mr. Rogers serves as Valley National Bank’s Executive Vice President and Chief Lending Officer for Florida and Alabama until August of 2022, when he retired from those positions.
Also effective on April 28, 2026, the Company, the Bank, and Mr. Rogers entered into an Employment Agreement. The Employment Agreement’s initial term will expire on May 1, 2029. On May 1, 2027, and each subsequent May 1st, the Employment Agreement shall automatically be extended for an additional one-year period unless any party provides notice of non-renewal. Mr. Rogers will receive a minimum annual salary of $450,000. He will also receive an automobile allowance, reimbursement for country club memberships, and a term life insurance policy. He is also eligible to participate in any of the Bank’s or the Company’s employee benefit plans and programs. He is also entitled to receive specific stock and cash incentive payments based on his and the Bank’s performance.
The Employment Agreement subjects Mr. Rogers to two-year, post-termination, customer and employee non-solicitation obligations. Upon a “change in control,” Mr. Rogers will be entitled to receive a cash payment equal to 2.99 times his then current base salary and target bonus for that year.
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SUMMARY OF THE OFFERING
The following summary describes the principal terms of this offering, but is not intended to be complete. See the information under the heading “The Offering” in this prospectus for a more detailed description of the terms and conditions of this offering.
Securities Offered | We are offering up to 4,108,072 shares of our common stock. | ||||
Subscription Privilege | You may submit a subscription for one share for each share you owned as of the record date. However, if you purchased shares in our recent private placement, you may not participate in this offering. | ||||
Record Date | 5:00 p.m., Eastern time, on May 12, 2026. | ||||
Expiration of the Offering | 5:00 p.m., Eastern time, on ___, 2026. | ||||
Subscription Price | $3.50 per share, payable in cash. To be effective, any payment related to a subscription must clear prior to the expiration of the offering. | ||||
Use of Proceeds | We estimate that the net proceeds that we will receive from this offering, after deducting sales agent commissions and the estimated offering expenses payable by us, will be approximately $13.8 million. We intend to use the net proceeds to improve the capital levels of the Company and the Bank, fund incremental allowance for credit losses, and to support the continued growth of the Bank and return it to profitability. | ||||
Non-Transferability of Subscription Privilege | The ability to subscribe may not be sold, transferred or assigned and will not be listed for trading on any stock exchange or market, including the Nasdaq Capital Market. | ||||
Material U.S. Federal Income Tax Consequences | For U.S. federal income tax purposes, we do not believe you should recognize income or loss upon submission of a subscription, but that conclusion may be unclear in certain respects. You should consult your own tax advisor as to the tax consequences of this offering. See “Material U.S. Federal Income Tax Consequences.” | ||||
No Board Recommendation | Our Board of Directors is making no recommendation regarding your submission of a subscription. You are urged to make your decision based on your own assessment of our business and this offering. Please see “Risk Factors” for a discussion of some of the risks involved in investing in our common stock. | ||||
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No Revocation | All subscriptions are irrevocable, even if you later learn information that you consider to be unfavorable to the submission of your subscription and even if this offering is extended by our Board of Directors. However, if we amend the offering to allow for an extension of this offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you have advanced, without interest or deduction. You should not submit a subscription unless you are certain that you wish to purchase additional shares of our common stock at a price of $3.50 per share. | ||||
Extension, Cancellation and Amendment | We have the option to extend this offering and the period for submitting subscriptions for a period not to exceed 30 days, although we do not presently intend to do so. If we elect to extend the expiration of this offering, we will issue a press release announcing such extension no later than 9:00 a.m., Eastern time, on the next business day after the most recently announced expiration of this offering. We will extend the duration of this offering as required by applicable law or regulation and may choose to extend it if we decide to give investors more time to submit subscriptions. If we elect to extend this offering for more than 30 days, then subscribers may cancel their subscriptions and receive a refund of their subscription funds, without interest or deduction. | ||||
Our Board of Directors may cancel this offering at any time prior to its expiration for any reason. If this offering is cancelled, we will issue a press release notifying shareholders of the cancellation and all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable. | |||||
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Our Board of Directors also reserves the right to amend or modify the terms of this offering. If we make any fundamental changes to the terms set forth in this prospectus, we will file a post-effective amendment to the registration statement in which this prospectus is included, offer subscribers the opportunity to cancel their subscriptions and issue a refund of any money advanced by such shareholder, without interest or deduction, and recirculate an updated prospectus after the post-effective amendment is declared effective by the SEC. In addition, upon such event, we may extend the expiration date of this offering to allow shareholders ample time to make new investment decisions and for us to recirculate updated documentation. Promptly following any such occurrence, we will issue a press release announcing any changes with respect to this offering and the new expiration date. The terms of the offering cannot be modified or amended after the expiration of the offering. Although we do not intend to do so, we may choose to amend or modify the terms of the offering for any reason, including, without limitation, in order to increase participation in the offering. Such amendments or modifications may include a change in the subscription price although no such change is presently contemplated. | |||||
Procedures for Subscribing | To submit a subscription, you must complete the subscription forms and deliver them to the escrow agent, Wilmington Trust, NA., together with full payment for all the shares you subscribe for. You may deliver the documents and payments by mail or commercial carrier. If regular mail is used for this purpose, we recommend using registered mail, properly insured, with return receipt requested. | ||||
Sales Agent | Hovde Group, LLC ("Hovde") will serve as our sales agent in this offering on a best efforts basis. We will pay them a 2.0% commission on all shares sold in the offering. | ||||
Backstop Purchaser | In the event this offering is not fully subscribed for, the Company will offer to sell to Kenneth R. Lehman, at the offering price, any and all shares otherwise unsold in this offering. | ||||
Shares Outstanding Before this Offering | 4,108,072 shares of our common stock were outstanding as of April 28, 2026. | ||||
Shares Outstanding After Completion of this Offering | We expect to issue up to 4,108,072 shares of our common stock in this offering. We anticipate that we will have 8,216,144 shares of our common stock outstanding immediately after completion of the offering. | ||||
Fees and Expenses | We will pay the fees and expenses related to this offering. | ||||
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Nasdaq Capital Market Trading Symbol | Shares of our common stock are traded on the Nasdaq Capital Market under the symbol “BAFN.” | ||||
Questions | If you have any questions about this offering, including questions about subscription procedures and requests for additional copies of this prospectus or other documents, please contact Hovde at (833) 587-4159 or by email to prospectus@hovdegroup.com. | ||||
Risk Factors | Before you invest in this offering, you should be aware that there are risks associated with your investment, including the risks described in the section entitled “Risk Factors” beginning on page 18 of this prospectus. You should carefully read and consider these risk factors together with all of the other information included in or incorporated by reference into this prospectus before you decide to subscribe to purchase shares of our common stock. | ||||
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QUESTIONS AND ANSWERS RELATING TO THE OFFERING
What is being offered?
We are offering for sale up to 4,108,072 shares of our common stock at a price of $3.50 per share. Holders of our common stock as of the record date of 5:00 p.m., Eastern time, on May 12, 2026, may subscribe to purchase one share of common stock they owned as of the record date. You may subscribe for any number of shares up to that amount, or not subscribe to purchase any shares. However, if you purchased shares in our recent private placement, you may not participate in this offering.
If you hold your shares in the name of a broker, custodian bank, dealer or other nominee who uses the services of the Depository Trust Company, or DTC, DTC will permit you to submit subscriptions through DTC.
The ability to subscribe may not be sold, transferred or assigned and will not be listed for trading on any stock exchange or market, including the Nasdaq Capital Market.
Are there any limits on the number of shares I may purchase in this offering?
Yes. Any purchases in the offering are inherently limited by the terms as described.
Why is the Company conducting this offering?
On April 28, 2026, we sold $80,000,000 in convertible preferred stock at a price equivalent to, the $3.50 per share offering price. We are conducting this offering to afford our current shareholders the ability to also acquire stock at the same price. We intend to use the net proceeds to improve the capital levels of the Company and the Bank, fund incremental allowance for credit losses, and to support the continued growth of the Bank and return it to profitability.
How was the $3.50 per share subscription price determined?
In determining the $3.50 per share subscription price, our Board of Directors considered factors including, but not limited to, our recent and current financial performance, potential losses in our loan portfolio, the likely cost of capital from other sources, the price at which new investors and current shareholders might be willing to purchase stock, our need for capital, and the desire to provide an opportunity to our shareholders to participate in the offering on the same terms as investors in our recent private placement. The subscription price is not necessarily related to our book value, net worth or any other established criteria of value and may or may not be considered the fair value of our common stock to be offered in this offering. We cannot give any assurance that our common stock will trade at or above the subscription price in any given time period.
How soon must I submit a subscription?
Subscriptions may be submitted at any time beginning on the date of this prospectus and prior to the expiration of this offering, which is __, 2026, at 5:00 p.m., Eastern time. If you elect to subscribe, the escrow agent must actually receive all required documents and payments from you prior to the expiration of the offering. Although we have the option of extending the expiration of this offering for a period not to exceed 30 days, we currently do not intend to do so.
May I transfer my ability to subscribe?
No. You may not sell or transfer the ability to subscribe to anyone.
Are we requiring a minimum subscription to complete the offering?
No.
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Are there any conditions to completing the offering?
No.
Can our Board of Directors extend, cancel or amend this offering?
Yes. We have the option to extend this offering and the period for submitting subscription for a period not to exceed 30 days, although we do not presently intend to do so. If we elect to extend the expiration of the offering, we will issue a press release announcing such extension no later than 9:00 a.m., Eastern time, on the next business day after the most recently announced expiration of the offering. We will extend the duration of the offering as required by applicable law or regulation and may choose to extend it if we decide to give shareholders more time to subscribe. If we elect to extend the offering for a period of more than 30 days, then subscribers may cancel their subscriptions and receive a refund of their subscription funds, without interest or deduction.
Our Board of Directors may cancel this offering at any time prior to the expiration of the offering for any reason. If the offering is cancelled, we will issue a press release notifying shareholders of the cancellation and all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable.
Our Board of Directors also reserves the right to amend or modify the terms of this offering. If we should make any fundamental changes to the terms set forth in this prospectus, we will file a post-effective amendment to the registration statement in which this prospectus is included, offer subscribers the opportunity to cancel their subscriptions and issue a refund of any money advanced by such shareholder and recirculate an updated prospectus after the post-effective amendment is declared effective by the SEC. In addition, upon such event, we may extend the expiration date of this offering to allow shareholders ample time to make new investment decisions and for us to recirculate updated documentation. Promptly following any such occurrence, we will issue a press release announcing any changes with respect to this offering and the new expiration date. The terms of the offering cannot be modified or amended after the expiration date of the offering. Although we do not presently intend to do so, we may choose to amend or modify the terms of this offering for any reason, including, without limitation, in order to increase participation in the offering. Such amendments or modifications may include a change in the subscription price although no such change is presently contemplated.
Has the Board of Directors made a recommendation to our shareholders regarding the offering?
The Board of Directors does not make any recommendation to shareholders regarding subscribing for shares in this offering. You should make an independent investment decision about whether or not to subscribe for shares. Shareholders who subscribe for shares risk investment loss on new money invested. We cannot assure you that the market price for our common stock will remain above the subscription price or that anyone purchasing shares at the subscription price will be able to sell those shares in the future at the same price or a higher price. Please see “Risk Factors” for a discussion of some of the risks involved in investing in our common stock.
What will happen if I choose not to exercise subscribe for shares?
If you do not subscribe for shares, the number of shares of our common stock you own will not change. However, due to the fact that shares will be purchased by other shareholders in this offering, your percentage ownership after the completion of the offering will be diluted.
How do I submit a subscription? What forms and payment are required to purchase the shares of our common stock?
If you wish to participate in this offering, you must take the following steps:
• | deliver payment to the escrow agent using the methods outlined in this prospectus before 5:00 p.m., Eastern time, on __, 2026; and | ||||||||||
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• | deliver a properly completed subscription form to the escrow agent before 5:00 p.m., Eastern time, on ___, 2026. | ||||||||||
If you send a payment that is insufficient to purchase the number of shares you subscribed for, or if the number of shares you requested is not specified in the forms, the payment received will be applied to the full extent possible based on the amount of the payment received, subject to the elimination of fractional shares.
When will I receive my new shares?
If you purchase shares through this offering, you will receive your new shares as soon as practicable after the closing of the offering.
After I send in my payment, may I cancel my subscription?
No. All subscriptions are irrevocable, even if you later learn information that you consider to be unfavorable to your investment decision and even if the offering is extended by our Board of Directors. However, if we amend the offering to allow for an extension of the offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you have advanced, without interest or deduction. You should not submit a subscription unless you are certain that you wish to purchase additional shares of our common stock at a price of $3.50 per share.
What should I do if I want to participate in this offering but my shares are held in the name of my broker, dealer, custodian bank or other nominee?
If you hold your shares of our common stock in the name of a broker, dealer, custodian bank or other nominee, then your broker, dealer, custodian bank or other nominee is the record holder of the shares you own.
The record holder must subscribe on your behalf for the shares of our common stock you wish to purchase. If you wish to participate in the offering and purchase shares of our common stock, please promptly contact the record holder of your shares. We will ask your broker, dealer, custodian bank or other nominee to notify you of the offering. You should receive an appropriate form from your record holder with the other offering materials.
How many shares of our common stock will be outstanding after this offering?
As of April 28, 2026, we had 4,108,072 of our common stock issued and outstanding and options and warrants to purchase 334,663 shares of our common stock outstanding. We expect to issue a maximum of 4,108,072 shares of our common stock in this offering. Assuming no options or warrants are exercised prior to the expiration of the offering, we anticipate that we will have 8,216,144 shares of our common stock outstanding immediately after completion of this offering.
What happens if the offering is not fully subscribed by our shareholders?
In the event this offering is not fully subscribed for, the Company will offer to sell to Kenneth R. Lehman, at the offering price, any and all shares otherwise unsold in this offering.
How much money will the Company receive from this offering?
Assuming all the shares of common stock offered are sold, the gross proceeds from the rights offering, before expenses, will be $14.38 million. Please see “Use of Proceeds.”
Are there risks in subscribing for shares?
Yes, subscribing for shares involves risks. Subscribing involves the purchase of additional shares of our common stock and should be considered as carefully as you would consider any other equity investment. Among other things, you should carefully consider the risks described under the headings “Risk Factors” in this prospectus.
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If the offering is not completed, will my subscription payment be refunded to me?
Yes. The escrow agent will hold all funds it receives in a segregated bank account until completion of this offering, pursuant to an escrow agreement between Wilmington Trust, N.A., us, and Hovde. If the offering is not completed, all subscription payments, without interest, as soon as practicable. If you own shares in “street name,” it may take longer for you to receive payment because the escrow agent will return payments through the record holder of the shares.
Will the subscription privileges listed on a stock exchange or national market?
The ability to subscribe in this offering may not be sold, transferred or assigned and will not be listed or quoted for trading on any stock exchange or market, including the Nasdaq Capital Market.
How do I subscribe if I live outside the United States?
We will not mail this prospectus to shareholders whose addresses are outside the United States or who have an army post office or foreign post office address. The escrow agent will accept their subscriptions directly. To submit subscriptions, foreign shareholders must notify the escrow agent and also timely follow required procedures.
To whom should I send my forms and payment?
If your shares are held in the name of a broker, dealer or other nominee, then you should send your subscription documents and subscription payment to that record holder. If you are the record holder, then you should send your subscription documents and subscription payment by hand delivery, first class mail or overnight courier service to:
Wilmington Trust, N.A.
1100 North Market Street
Wilmington, DE 19890
Attn: Workflow Management
You are solely responsible for completing delivery to the escrow agent of your subscription documents and payment. We urge you to allow sufficient time for delivery of your subscription materials to the escrow agent.
Whom should I contact if I have other questions?
If you have other questions or need assistance, please contact Hovde at (833) 587-4159 or by email to prospectus @hovdegroup.com.
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RISK FACTORS
Investing in our securities involves significant risks, including the risks described below. You should carefully consider the following information about these risks, together with the other information contained in this prospectus before investing in this offering. The risks that we have highlighted here are not the only ones that we face. Additional risks presently unknown to us or that we currently consider immaterial or unlikely to occur could also impair our operations. In addition, there are risks beyond our control. If any of these risks actually occur, our business, financial condition or results of operations could be negatively affected, and you could lose part or all of your investment.
Risks Related to Our Business and Risks Related to Our Securities
Our business and securities related risks are described in detail in our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed with the SEC on March 27, 2026. The following risk factors supplement those risk factors.
Risks Related to this Offering
The market price of our common stock is volatile and may decline before or after the offering.
The trading price of our common stock is highly volatile and could be subject to wide fluctuations in response to various factors, some of which are beyond our control and may not be related to our operating performance. These fluctuations could be significant and could cause a loss in the amount invested in our shares of common stock.
In addition, the stock market in general, and the market for banks and bank holding companies in particular, has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. At times, securities class action litigation has been instituted against companies following periods of volatility in the overall market and in the market price of a company’s securities. This litigation, if instituted against us, could result in substantial costs, divert our management’s attention and resources, and harm our business, operating results, and financial condition.
We cannot assure you that the market price of our common stock will not decline after you subscribe for the shares. If that occurs, you may have committed to buy shares of our common stock in the offering at a price greater than the prevailing market price, and could have an immediate unrealized loss. Moreover, we cannot assure you that following the offering you will be able to sell your common stock at a price equal to or greater than the subscription price. Until shares are delivered upon expiration of the offering, you will not be able to sell the shares of our common stock that you purchase in this offering. A direct registration account statement from our transfer agent reflecting ownership of such shares will be delivered as soon as practicable after expiration of this offering. We will not pay you interest on subscription funds delivered to the escrow agent.
If you do not subscribe for the maximum amount of shares you may subscribe for, or if the offering is oversubscribed and we reduce your subscription, your ownership interest will be diluted.
This offering may result in our issuance of up to 4,108,072 additional shares of our common stock. If you choose not subscribe for the maximum amount of shares you may subscribe for, or if the offering is oversubscribed and we reduce your subscription, your relative ownership interest in us will be diluted to the extent shares are purchased by other shareholders in this offering.
The ability to subscribe is not transferable.
You may not sell, transfer or assign your ability to subscribe for shares in this offering. Therefore, there is no market or other means for you to directly realize any value associated with your ability to subscribe. You must submit a subscription and purchase shares of our common stock to realize any value that may be embedded in the your ability to subscribe for shares.
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The subscription price determined for this offering is not an indication of the fair value of our common stock.
In determining the subscription price for this offering, our Board of Directors considered the price paid in our recent private placement, which was based on factors including, but not limited to, our recent and current financial performance, potential losses in our loan portfolio, the likely cost of capital from other sources, the price at which new investors and current shareholders might be willing to purchase stock, our need for capital, and the desire to provide an opportunity to our shareholders to participate in the offering on the same terms as investors in our recent private placement. The subscription price is not necessarily related to our book value, net worth or any other established criteria of value and may or may not be considered the fair value of our common stock to be offered in the offering. We cannot give you any assurance that our common stock will trade at or above the subscription price in any given time period. After the date of this prospectus, our common stock may trade at prices above or below the subscription price.
Because our management will have broad discretion over the use of the proceeds from this offering, you may not agree with how we use the proceeds, and we may not invest the proceeds successfully.
We are conducting this offering to improve the capital levels of the Company and the Bank, fund incremental allowance for credit losses, and to support the continued growth of the Bank and return it to profitability. In addition, market factors may require our management to allocate portions of the proceeds for other purposes. Accordingly, you will be relying on the judgment of our management regarding the use of the proceeds from this offering, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that the proceeds will be invested in a way that does not yield a favorable, or any, return for us.
We may cancel this offering at any time prior to its expiration, and neither we nor the escrow agent will have any obligation to you except to return your subscription funds.
We may, in our sole discretion, decide not to continue with this offering or cancel it prior to its expiration. If we do cancel this offering, we will issue a press release notifying shareholders of the cancellation and all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable.
We may amend or modify the terms of this offering at any time prior to its expiration in our sole discretion.
Our Board of Directors reserves the right to amend or modify the terms of this offering in its sole discretion. Although we presently do not intend to do so, we may choose to amend or modify the terms of this offering for any reason. Such amendments or modifications may include a change in the subscription price although no such change is presently contemplated. If we should make any fundamental changes to the terms set forth in this prospectus, we will file a post-effective amendment to the registration statement in which this prospectus is included, offer subscribers the opportunity to cancel their subscriptions and issue a refund of any money advanced by them, and recirculate an updated prospectus after the post-effective amendment is declared effective by the SEC. In addition, upon such event, we may extend the expiration date of this offering to allow shareholders ample time to make new investment decisions and for us to recirculate updated documentation. Promptly following any such occurrence, we will issue a press release announcing any changes with respect to this offering and the new expiration date. The terms of this offering cannot be modified or amended after its expiration date.
You may not revoke your subscription exercise, even if this offering is extended by our Board of Directors, and you could be committed to buying shares above the prevailing market price.
Once you submit a subscription, you may not revoke it. If our Board of Directors decides to exercise its option to extend this offering, you still may not revoke your subscription. However, if we amend this offering to allow for an extension of this offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you advanced. The public trading market price of our common stock may decline before we issue shares in this offering. If you subscribe for shares and, afterwards, the public trading market price of our common stock decreases below the subscription price,
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you will have committed to buying shares of our common stock at a price above the prevailing market price. Following this offering, you may be unable to sell your shares of our common stock at a price equal to or greater than the price you paid, and you may lose all or part of your investment.
If you do not act promptly and follow the subscription instructions, your subscription will be rejected.
Shareholders that desire to purchase shares in this offering must act promptly to ensure that all required forms and payments are actually received by the escrow agent prior to the expiration of the offering. If you are a beneficial owner of shares, you must act promptly to ensure that your broker, dealer, custodian bank or other nominee acts for you and that all required forms and payments are actually received by the escrow agent prior to the expiration of this offering. We are not responsible if your broker, custodian or nominee fails to ensure that all required forms and payments are actually received by the escrow agent prior to the expiration of the offering. If you fail to complete and sign the required subscription forms, send an incorrect payment amount or otherwise fail to follow the subscription procedures that apply to your subscription prior to the expiration of the offering, the escrow agent will reject your subscription or accept it only to the extent of the payment received. Neither we nor our sales agent nor the escrow agent undertakes to contact you concerning an incomplete or incorrect subscription form or payment, nor are we under any obligation to correct such forms or payment. We have the sole discretion to determine whether a subscription exercise properly complies with the subscription procedures.
This offering may cause the price of our common stock to decrease.
The announcement of this offering and its terms, including the subscription price, together with the number of shares of common stock we could issue if the offering is completed, may result in an immediate decrease in the trading price of our common stock. This decrease may continue after the completion of the offering. If that occurs, your purchase of shares of our common stock in this offering may be at a price greater than the prevailing trading price. Further, if a substantial number of shares are sold in the offering and their holders sell some or all of their shares, the resulting sales could depress the market price of our common stock.
You will not receive interest on subscription funds, including any funds ultimately returned to you.
You will not earn any interest on your subscription funds while they are being held by the escrow agent pending the closing of this offering.
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THE OFFERING
Subscriptions
Record holders of our common stock as of the record date have the non-transferable ability to subscribe to purchase shares of our common stock. The subscription price of $3.50 per share was determined by our Board of Directors based on factors including, but not limited to, our recent and current financial performance, potential losses in our loan portfolio, the likely cost of capital from other sources, the price at which new investors and current shareholders might be willing to purchase stock, our need for capital, and the desire to provide an opportunity to our shareholders to participate in the offering on the same terms as investors in our recent private placement.
You may submit a subscription for one share for each share you owned as of the record date. However, if you purchased shares in our recent private placement, you may not participate in this offering. If all shares are purchased, the total purchase price of the shares offered in this offering and gross proceeds we receive, before expenses, would be $14.38 million.
If you are a holder of record, a direct registration account statement from our transfer agent reflecting ownership of such shares of our common stock purchased in this offering will be delivered to you as soon as practicable after the offering has expired. If you hold your shares in the name of a bank, broker, dealer or other nominee, DTC will credit your nominee with the securities you purchased in this offering.
Reasons for the Offering
On April 28, 2026, we closed a private placement of convertible preferred stock at an effective conversion price of $3.50 per share common stock. We are conducting this offering to permit our current shareholders to also purchase shares at the same price. We intend to use the net proceeds to improve the capital levels of the Company and the Bank, fund incremental allowance for credit losses, and to support the continued growth of the Bank and return it to profitability.
Method of Submitting Subscriptions
The submission of a subscription is irrevocable and may not be cancelled or modified, even if the offering is extended by our Board of Directors. However, if we amend the offering to allow for an extension of the offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you have advanced, without interest or deduction
Subscription by Registered Holders
You may submit a subscription by properly completing and executing the subscription form together with any required signature guarantees and forwarding it, together with your full subscription payment, to the escrow agent at the address set forth below prior to the expiration of the offering.
Subscription by DTC Participants
We expect that subscriptions may be submitted through the facilities of DTC. If your shares are held of record through DTC, you may submit a subscription by instructing DTC, or having your broker instruct DTC, to forward your subscription information from your account to the account of the escrow agent, together with confirmation of the number of shares of our common stock you are subscribing for, and payment of your full subscription payment.
Subscription by Beneficial Owners
If you are a beneficial owner of shares of our common stock that are registered in the name of a broker, custodian bank or other nominee, or if you hold our common stock certificates and would prefer to have an institution conduct the transaction on your behalf, you should instruct your broker, custodian bank or other nominee or institution to submit your subscription and deliver all documents and payment on your behalf prior to 5:00 p.m.,
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Eastern time, on __, 2026, which is the expiration of this offering. Your subscription will not be considered submitted unless the escrow agent receives from you, your broker, custodian bank, nominee or institution, all of the required documents and your full subscription payment prior to 5:00 p.m., Eastern time, on __, 2026.
Payment Method
Your payment of the subscription price must be made in United States dollars for the full number of shares of common stock for which you are subscribing by cashier’s or certified check or wire transfer drawn upon a U.S. bank payable to “Wilmington Trust, N.A., as Escrow Agent for BayFirst 4-26 Public Escrow Account” at the address set forth below. The escrow agent will not accept non-certified checks or payment by any other means. Payment received after the expiration of the offering will not be honored, and the sales agent will return your payment to you, without interest or deduction, as soon as practicable.
Your payment will only be considered received by the escrow agent upon receipt by the escrow agent of any;
•Cashiers or certified checks drawn against a U.S. bank payable to “WILMINGTON TRUST, N.A. as Escrow Agent for “BayFirst 4-26 Public Escrow Account”, mailed to
Wilmington Trust, N.A.
1100 North Market Street
Wilmington, DE 19890
Attn: Workflow Management
•Wire transfer of immediately available funds directly to the account maintained by Wilmington Trust, N.A., as escrow agent for purposes of accepting subscriptions in this offering at:
Wilmington Trust, National Association
ABA #: 031100092
A/C #: 184604-000
A/C Name: BayFirst 4-26 Public Escrow Account
Attn: Amy Kohr
Your payments must be accompanied by properly completed subscription forms, and, if you pay by wire transfer, you should include sufficient information with the wire transfer to identify yourself, and ensure that your subscription form is also delivered to the escrow agent.
You should read the instruction letter for this offering carefully and strictly follow it. DO NOT SEND FORMS OR PAYMENTS TO US. We will not consider your subscription received until the escrow agent has received delivery of a properly completed and duly executed subscription forms and payment of the full subscription amount. The risk of delivery of all documents and payments is borne by you or your nominee, not by the escrow agent or us.
The method of delivery of subscription forms and payment of the subscription amount to the escrow agent will be at the risk of subscribing shareholders. If sent by mail, we recommend that you send those documents and payments by overnight courier or by registered mail, properly insured, with return receipt requested, and that a sufficient number of days be allowed to ensure delivery to the escrow agent and clearance of payment prior to the expiration of the offering.
Unless your subscription documents provide that the shares of our common stock are to be delivered to the record holder or such certificate is submitted for the account of a bank or a broker, signatures must be guaranteed by an “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 of the Exchange Act, subject to any standards and procedures adopted by the escrow agent.
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Missing or Incomplete Subscription Information
If you do not indicate the number of shares being subscribed for, or the escrow agent does not receive the full subscription payment for the number of shares you indicate you are subscribing for, then you will be deemed to have subscribed for the maximum number of shares that may be purchased with the aggregate subscription payment you delivered to the escrow agent. If we do not apply your full subscription payment to your purchase of shares of our common stock, any excess subscription payment received by the escrow agent will be returned, without interest or deduction, as soon as practicable.
Expiration Date and Amendments
The subscription period, expires at 5:00 p.m., Eastern time, on __, 2026, which is the expiration of the offering. If you do not submit a subscription prior to that time, your ability to subscribe will expire. We will not be required to issue shares of our common stock to you if the escrow agent receives your subscription forms or your subscription payment after that time, regardless of when the documents and subscription payment were sent. We may extend the expiration of this offering for a period not to exceed 30 days by giving oral or written notice to the escrow agent prior to the expiration of the offering, although we presently do not intend to do so. If we elect to extend the expiration of the offering, we will issue a press release announcing such extension no later than 9:00 a.m., Eastern time, on the next business day after the most recently announced expiration of the offering. We will extend the duration of the offering as required by applicable law or regulation and may choose to extend it if we decide to give investors more time to submit subscriptions. If we elect to extend the offering for a period of more than 30 days, then holders who have subscribed for shares may cancel their subscriptions and receive a refund of all money advanced, without interest or deduction.
Our Board of Directors also reserves the right to amend or modify the terms of this offering. If we should make any fundamental changes to the terms set forth in this prospectus, we will file a post-effective amendment to the registration statement in which this prospectus is included, offer subscribers the opportunity to cancel their subscriptions and issue a refund of any money advanced by such shareholders, without interest or deduction, and recirculate an updated prospectus after the post-effective amendment is declared effective by the SEC. In addition, upon such event, we may extend the expiration date of this offering to allow shareholders ample time to make new investment decisions and for us to recirculate updated documentation. Promptly following any such occurrence, we will issue a press release announcing any changes with respect to this offering and the new expiration date. The terms of the offering cannot be modified or amended after the expiration date of the offering. Although we do not presently intend to do so, we may choose to amend or modify the terms of this offering for any reason, including, without limitation, in order to increase participation in the offering. Such amendments or modifications may include a change in the subscription price although no such change is presently contemplated.
Subscription Price
In determining the subscription price, our Board of Directors considered the price paid in our recent private placement, which was based on factors including, but not limited to, our recent and current financial performance, potential losses in our loan portfolio, the likely cost of capital from other sources, the price at which new investors and current shareholders might be willing to purchase stock, our need for capital, and the desire to provide an opportunity to our shareholders to participate in the offering on the same terms as investors in our recent private placement.
The subscription price was established at a price of $3.50 per share. The subscription price is not necessarily related to our book value, net worth or any other established criteria of value and may or may not be considered the fair value of our common stock to be offered in this offering. We cannot assure you that the market price of our common stock will not decline during or after the offering. We also cannot assure you that you will be able to sell shares of our common stock purchased during the offering at a price equal to or greater than the subscription price. We urge you to obtain a current quote for our common stock before submitting a subscription.
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Withdrawal and Termination
We reserve the right to withdraw the offering prior to its expiration for any reason. We may terminate the offering, in whole or in part, if at any time before completion of the offering if there is any judgment, order, decree, injunction, statute, law or regulation entered, enacted, amended or held to be applicable to the offering that in the sole judgment of our Board of Directors would or might make the offering or its completion, whether in whole or in part, illegal or otherwise restrict or prohibit completion of the offering. We may waive any of these conditions and choose to proceed with the offering even if one or more of these events occur. If we terminate, cancel or withdraw the offering, in whole or in part, we will issue a press release notifying the shareholders of such event, all affected subscriptions will expire, and all excess subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable following such termination, cancellation or withdrawal.
Sales Agent
The sales agent for this offering is Hovde Group, LLC. The sales agent will be available to answer any questions you may have about the offering by phone at (833) 587-4159 or by email to prospectus@hovdegroup.com.
Escrow Agent
The escrow agent for the offering is Wilmington Trust, N.A.. The address at which subscription payments and subscription forms should be mailed or delivered by hand delivery, first class mail or overnight courier service is:
Wilmington Trust, N.A.
1100 North Market Street
Wilmington, DE 19890
Attn: Workflow Management
You must ensure that your payments are accompanied by accurately completed subscription forms, so that your payment can be properly attributed to you.
Fees and Expenses
We will pay all fees charged by the escrow agent and the escrow agent. You are responsible for paying any other commissions, fees, taxes or other expenses incurred in connection with your subscription.
No Fractional Shares
We will not issue fractional shares or cash in lieu of fractional shares. Fractional shares of our common stock which may otherwise be issued will be eliminated by rounding down to the nearest whole share, with the total subscription payment being adjusted accordingly. Any excess subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable.
Notice to Nominees
If you are a broker, custodian bank or other nominee holder that holds shares of our common stock for the account of others on the record date, you should notify the beneficial owners of the shares for whom you are the nominee of this offering as soon as possible to learn their intentions with respect to submitting subscriptions. You should obtain instructions from the beneficial owner, as set forth in the instructions we have provided to you for your distribution to beneficial owners. If the beneficial owner instructs, you should complete the appropriate documents and submit them to the escrow agent with the proper subscription payment. If you hold shares of our common stock for the account(s) of more than one beneficial owner, you may submit subscriptions for all such beneficial owners in the aggregate who otherwise would have been entitled to, had they been direct holders of our common stock on the record date, provided that you, as a nominee record holder, make a proper showing to the escrow agent by submitting the appropriate form which is provided with your offering materials. If you did not receive this form, you should contact the sales agent to request a copy.
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Beneficial Owners
If you are a beneficial owner of shares of our common stock or otherwise hold shares through a broker, custodian bank or other nominee, we will ask your broker, custodian bank or other nominee to notify you of the offering. If you wish to submit a subscription, you will need to have your broker, custodian bank or other nominee act for you. If you hold certificates of our common stock directly and would prefer to have your broker, custodian bank or other nominee act for you, you should contact your nominee and request it to effect the transactions for you. To indicate your decision with respect to your subscription, you should complete and return to your broker, custodian bank or other nominee the appropriate form. You should receive this form from your broker, custodian bank or other nominee with the other offering materials. You should contact your broker, custodian bank or other nominee if you do not receive this form, but you believe you are entitled to participate in the offering. We are not responsible if you do not receive the form from your broker, custodian bank or nominee or if you receive it without sufficient time to respond.
Transferability of Subscription Privileges
The ability to subscribe is non-transferable and, therefore, you may not sell, transfer or assign your subscription privileges to anyone.
Validity of Subscriptions
We will resolve all questions regarding the validity and form of the subscriptions, including time of receipt and eligibility to participate in this offering. In resolving all such questions, we will review the relevant facts, consult with our legal advisors and we may request input from the relevant parties. Our determination will be final and binding. Once made, subscriptions and directions are irrevocable, even if you later learn information that you consider to be unfavorable to the submission of your subscription and even if the offering is extended by our Board of Directors, and we will not accept any alternative, conditional or contingent subscriptions or directions. However, if we amend the offering to allow for an extension of the offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you have advanced, without interest or deduction. We reserve the absolute right to reject any subscriptions or directions not properly submitted or the acceptance of which would be unlawful. You must resolve any irregularities in connection with your subscriptions before the subscription period expires, unless waived by us in our sole discretion. Neither we nor the escrow agent shall be under any duty to notify you or your representative of defects in your subscriptions. A subscription will be considered accepted, subject to our right to withdraw or terminate the offering, only when properly completed and duly subscription forms and any other required documents and the full subscription payment have been received by the escrow agent. Our interpretations of the terms and conditions of the offering will be final and binding.
Escrow Arrangements; Return of Funds
The escrow agent will hold funds received in payment for shares of our common stock in a segregated account pending completion of the offering. The escrow agent will hold this money in escrow until the offering is completed or is withdrawn and canceled. If the offering is canceled for any reason, all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable. In addition, all subscription payments received by the escrow agent will be returned, without interest or deduction, as soon as practicable, if subscribers decide to cancel their subscriptions in the event that we extend the offering for a period of more than 30 days after the expiration date or if there is a fundamental change to the offering.
Shareholder Rights
You will have no rights as a holder of the shares of our common stock you purchase in the offering, if any, until such shares are issued in uncertificated, book-entry form, which means that you will receive a direct
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registration account statement from our transfer agent reflecting ownership of such shares if you are a holder of record. If you hold your shares in the name of a bank, broker, dealer or other nominee, DTC will credit your nominee with the shares you purchased in this offering. You will have no right to revoke your subscription after you deliver your completed subscription forms, the full subscription payment and any other required documents to the escrow agent, unless we amend or modify the terms of the offering.
Foreign Shareholders
We will not mail this prospectus or subscription forms to shareholders with addresses that are outside the United States or that have an army post office or foreign post office address. The escrow agent will hold these items for their account. To submit subscriptions, our foreign shareholders must notify the escrow agent prior to 11:00 a.m., Eastern time, at least three business days prior to the expiration of the offering and demonstrate to the satisfaction of the escrow agent that the submission of such subscription does not violate the laws of the jurisdiction of such shareholder.
No Revocation or Change
Once you submit subscription documents and payment, you are not allowed to revoke or change the exercise or request a refund of monies paid. All subscriptions are irrevocable, even if you later learn information that you consider to be unfavorable to your subscription and even if the offering is extended by our Board of Directors. However, if we amend the offering to allow for an extension of the offering for a period of more than 30 days or make a fundamental change to the terms set forth in this prospectus, you may cancel your subscription and receive a refund of any money you have advanced, without interest or deduction. You should not submit a subscription unless you are certain that you wish to purchase additional shares of our common stock at the subscription price.
Regulatory Limitation
We will not be required to issue to you shares of our common stock in this offering if, in our opinion, you are required to obtain prior clearance or approval from any state or federal regulatory authorities to own or control such shares and if, at the time the offering expires, you have not obtained such clearance or approval.
No Recommendation
Our Board of Directors is making no recommendation regarding whether you should subscribe to purchase shares. You are urged to make your decision based on your own assessment of our business and this offering. Please see “Risk Factors” for a discussion of some of the risks involved in investing in our common stock.
Listing
The ability to subscribe will not be listed or quoted for trading on any stock exchange or market, nor on the Nasdaq Capital Market. The shares of our common stock issuable in this offering will be available for trading on the Nasdaq Capital Market under the symbol “BAFN.”
Shares of Our Common Stock Outstanding After this Offering
Assuming no outstanding and vested stock options or warrants are exercised prior to the expiration of the offering, we expect that there will be 8,216,144 shares of our common stock outstanding immediately after completion of the offering.
Other Matters
We are not making this offering in any state or other jurisdiction in which it is unlawful to do so, nor are we distributing or accepting any offers to purchase any shares of our common stock from shareholders who are residents of those states or other jurisdictions or who are otherwise prohibited by federal or state laws or regulations from submitting subscriptions. We may delay the commencement of the offering in those states or other
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jurisdictions, or change the terms of the offering, in whole or in part, in order to comply with the securities laws or other legal requirements of those states or other jurisdictions. Subject to state securities laws and regulations, we also have the discretion to delay allocation and distribution of any shares you may subscribe to purchase in order to comply with state securities laws. We may decline to make modifications to the terms of the offering requested by those states or other jurisdictions, in which case, if you are a resident in those states or jurisdictions or if you are otherwise prohibited by federal or state laws or regulations from subscribing you will not be eligible to participate in this offering. However, we are not currently aware of any states or jurisdictions that would preclude participation in this offering.
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PLAN OF DISTRIBUTION
As soon as practicable after the commencement of this offering, we will distribute subscription forms to individuals who owned shares of our common stock at 5:00 p.m., Eastern time, on May 12, 2026, the record date for this offering. If you wish to submit a subscription and purchase shares of our common stock, you should complete the subscription forms and return them with payment for the shares by hand delivery, first class mail or overnight courier service to the escrow agent:
Wilmington Trust, N.A.
1100 North Market Street
Wilmington, DE 19890
Attn: Workflow Management
See “The Offering—Method of Submitting Subscriptions.” If you have any questions, you should contact Hovde at (833) 587-4159 or by email to prospectus@hovdegroup.com.
We have engaged Hovde to act as our sales agent in this offering, pursuant to a Placement Agency Agreement dated __________, 2026. The sales agent will act on a “best efforts” basis. Therefore, they are not required to sell any specific number or dollar amount of securities but will use their best efforts to sell the securities offered. Because the offering is not underwritten by a broker-dealer on a firm commitment basis, there can be no assurance that any shares of common stock we are offering will be sold.
Fees and Expenses
We will pay the sales agent a commission equal to 2% of the gross proceeds of this offering. The following table shows the per share and total cash sales agent’s fees we will pay to the sales agent in connection with the sale of securities offered pursuant to this prospectus assuming the purchase of all of the shares of common stock offered hereby:
Per share | Total | |||||||
Public offering price | $3.50 | $14,378,252 | ||||||
Sales agent fees | $0.07 | $287,565 | ||||||
Proceeds to us, before expenses | $3.43 | $14,090,687 | ||||||
Some of our employees may solicit responses from you, but we will not pay our employees any commissions or compensation for these services other than their normal employment compensation.
We estimate that our total expenses, including commissions, in connection with this offering will be approximately $580,000. Other than as described herein, we do not know of any existing agreements between or among any shareholder, broker, dealer, underwriter or agent relating to the sale or distribution of the underlying common stock.
Indemnification
We have agreed to indemnify the sales agent against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the sales agent may be required to make in respect of such liabilities.
Lock-Up Agreements
In connection with the Private Placement, certain of our executive officers and directors agreed, subject to certain exceptions, not to offer, issue, sell, contract to sell, encumber, grant any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any common stock or other securities convertible into or exercisable or exchangeable for our common stock for a period of 30 days.
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Regulation M
The sales agent may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. As an underwriter, the sales agent would be required to comply with the requirements of the Securities Act and the Exchange Act, including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations may limit the timing of purchases and sales of our securities by the sales agent acting as principal. Under these rules and regulations, the sales agent (i) may not engage in any stabilization activity in connection with our securities and (ii) may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed its participation in the distribution.
Certain Relationships
Hovde also acted as placement agent in the Private Placement.
Exchange Listing
The shares of common stock issued in this offering will be listed on the Nasdaq Capital Market under the symbol “BAFN.”
USE OF PROCEEDS
We estimate that the net proceeds that we will receive from this offering, after deducting sales agent commissions and the estimated offering expenses payable by us, will be approximately $13.8 million. However, this offering is being conducted on a “best-efforts” basis, so the sales agent is not required to sell any specific number or dollar amount of securities but will use their best efforts to sell the securities offered. Because the offering is not underwritten by a broker-dealer on a firm commitment basis, there can be no assurance that any shares of common stock we are offering will be sold. Accordingly, the net proceeds, if any, that we may receive as a result of the subscription may be substantially less than as described above. We intend to use the net proceeds, including commissions, to improve the capital levels of the Company and the Bank, fund incremental allowance for credit losses, and to support the continued growth of the Bank and return it to profitability.
MARKET PRICE, DIVIDENDS, AND RELATED STOCKHOLDER MATTERS
As of April 28, 2026, we had approximately 533 record holders of our common stock. Our common stock is listed on the Nasdaq Capital Market under the symbol “BAFN.”
In July 2025, our Board of Directors suspended payments of dividends to common and preferred shareholders. Future dividends may be declared subject to the discretion of the Board. Our Board may consider, among other factors, debt service requirements of our debt both at the Bank and parent company levels, the dividend requirements of any outstanding preferred stock, our projected earnings, financial condition, and regulatory capital requirements, including applicable statutory and regulatory restrictions on the payment of dividends, in determining whether or not to declare a dividend.
LEGAL PROCEEDINGS
We are not currently involved in any litigation that we believe may result in a material loss. From time-to-time, we are involved in litigation arising in the ordinary course of our business.
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DESCRIPTION OF OUR SECURITIES
Common Stock
We have 15,000,000 shares of authorized common stock, no par value. Each share of common stock has the same relative rights and is identical in all respects with every other share of common stock. The holders of common stock are entitled to elect the members of the Board and are entitled to vote as a class on all matters required or permitted to be submitted to the stockholders. Holders of common stock have one vote for each share of common stock owned, and do not have the right to cumulative votes in the election of directors.
Subject to the rights of the holders of our preferred shares, the holders of our common stock are entitled to dividends and other distributions if, as, and when, declared by our Board out of assets legally available for that purpose. Upon the liquidation, dissolution or winding up of BayFirst, the holder of each share of common stock is entitled, subject to the rights of the holders of our preferred shares, to share ratably, based on the number of shares held, in BayFirst’s assets remaining after payment of all of our debts and liabilities. All shares of our common stock currently outstanding are fully paid and non-assessable. Holders of our common stock do not have preemptive, conversion, exchange, or other rights to subscribe for or purchase any additional shares of common stock that we may issue in the future. If additional shares of our common stock are issued, such new shares would have the same voting and other rights and privileges as the currently issued and outstanding shares of common stock, including the right to cast one vote per share on all matters and to participate in dividends when and to the extent declared and paid. There are no redemptive or sinking fund provisions applicable to the common stock.
The terms our Series A Preferred Stock, Series B Convertible Preferred Stock, Series C Cumulative Convertible Preferred Stock, Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series D, and Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series E, described below, prohibit us from declaring or paying any dividends on our common stock, or from repurchasing, redeeming or acquiring our common stock, unless we have declared and paid full dividends on our outstanding preferred stock for the most recently completed dividend period.
Fractional Shares
We have issued, and may continue to issue, fractional shares of our common stock. Florida law provides that the holder of a fractional share is entitled to exercise the rights of a shareholder. The relevant statute (Section
607.0604, Florida Statutes) enumerates those rights to specifically include the right to vote, the right to receive dividends, and the right to receive distributions upon dissolution. Such rights would be available to, and exercised by, a shareholder in proportion to the amount of shares owned. Without limiting the generality of applicable Florida law, we intend to provide all shareholders, including any owner of a fractional share with all confirmations, proxy statements, and other documents required by law to be, or otherwise, provided to security holders.
BayFirst and our stock transfer agent will accept, process, and recognize trades in fractions of shares. A shareholder’s ownership of any fractional share will be recorded on our stock ledger. A shareholder may engage in private sales or purchases of fractional BayFirst shares.
Nasdaq does not permit the buying or selling of fractional shares. We do not believe other established markets or exchanges permit so either.
However, different brokers and their trading platforms handle fractional shares in different ways. Some facilitate trading fractional shares. Because of our size and relatively inactive market for our stock, a shareholder’s broker may not facilitate the trading of a BayFirst fractional share. Depending on the broker, a shareholder might need to buy or sell a certain dollar amount of fractional stock in order to complete a transaction. We can offer no assurance as to whether any broker or trading platform will permit an investor to purchase or sell a fractional share of BayFirst common stock. If a shareholder wants to buy or sell a fractional share, the shareholder should compare brokerages before signing up to ensure the one the shareholder chooses allows it.
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Preferred Stock Generally
We have 1,000,000 shares of authorized preferred stock, no par value. Our articles of incorporation provide that our Board of Directors may authorize and issue series of preferred stock without stockholder approval. Any preferred shares issued in the future may further restrict our ability to declare or pay dividends on any junior stock, including the common stock.
Series A Preferred Stock
Of the 1,000,000 shares of authorized preferred stock, 10,000 shares have been designated as Series A Preferred Stock. Each share of Series A Preferred Stock has the same relative rights and is identical in all respects with every other share of Series A Preferred Stock. The holders of Series A Preferred Stock do not have voting rights, except as required by the Florida Business Corporation Act.
Holders of shares of Series A Preferred Stock are entitled to receive quarterly cash dividends at 9% per annum (unless we have not redeemed the shares by the tenth anniversary of their issuance, in which event the rate is subject to be increased to 11%). The terms our Series A Preferred Stock prohibit us from declaring or paying any dividends on any junior series of our capital stock, including our common stock, or from repurchasing, redeeming or acquiring such junior stock, unless we have declared and paid full dividends on our outstanding preferred stock for the most recently completed dividend period.
Upon the dissolution, liquidation or winding up of the affairs of BayFirst, whether voluntary or involuntary, the holders of Series A Preferred Stock then outstanding, together with holders of shares of any preferred shares then outstanding ranking on a parity with the Series A Preferred Stock upon dissolution, liquidation or winding up, shall be entitled to receive and to be paid out of the assets of BayFirst (or the proceeds thereof) available for distribution to the holders of Series A Preferred Stock after satisfaction of claims of creditors of BayFirst and any distribution or payments due to holders of preferred shares higher in priority to the Series A Preferred Stock, but before any distribution or payment shall be made in respect of the common shares or with respect to preferred shares lower in priority to the Series A Preferred Stock, an amount equal to the liquidation preference with
respect to such shares. The liquidation preference for Series A Preferred Stock is $1,000 per share plus an
amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution is made in full.
Series A Preferred Stock, Series B Convertible Preferred Stock, and Series C Cumulative Convertible Preferred Stock are pari passu with respect to dividend and liquidation preferences.
On the tenth anniversary of the issuance of any Series A Preferred Stock, BayFirst must redeem such shares; provided, however, that BayFirst will not be so obligated if it does not have adequate funds to pay the redemption price or is prohibited by law or otherwise from redeeming the shares. BayFirst may redeem any portion of the outstanding Series A Preferred Stock at any time after the third anniversary of their issuance. The redemption price in either instance will be $1,000 per share plus an amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution is made in full.
Series B Convertible Preferred Stock
In addition, 20,000 shares of preferred stock have been designated as Series B Convertible Preferred Stock. Each share of Series B Convertible Preferred Stock has the same relative rights and is identical in all respects with every other share of Series B Convertible Preferred Stock. The holders of Series B Convertible Preferred
Stock do not have voting rights, except as required by the Florida Business Corporation Act.
The holders of shares of Series B Convertible Preferred Stock are entitled to receive quarterly cash dividends at 8% per annum (subject to increase to 9% if we have not redeemed the shares by the tenth anniversary of their issuance). The terms our Series B Convertible Preferred Stock prohibit us from declaring or paying any dividends on any junior series of our capital stock, including our common stock, or from repurchasing, redeeming or acquiring
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such junior stock, unless we have declared and paid full dividends on our outstanding preferred stock for the most recently completed dividend period.
Upon the dissolution, liquidation or winding up of the affairs of BayFirst, whether voluntary or involuntary, the holders of Series B Convertible Preferred Stock then outstanding, together with holders of shares of any preferred shares then outstanding ranking on a parity with the Series B Preferred Stock upon dissolution, liquidation or winding up, shall be entitled to receive and to be paid out of the assets of BayFirst (or the proceeds thereof) available for distribution to the holders of Series B Convertible Preferred Stock after satisfaction of claims of creditors of BayFirst and any distribution or payments due to holders of preferred shares higher in priority to the Series B Convertible Preferred Stock, but before any distribution or payment shall be made in respect of the common shares or with respect to preferred shares lower in priority to the Series B Convertible Preferred Stock, an amount equal to the liquidation preference with respect to such shares. The liquidation preference for Series B Convertible Preferred Stock is $1,000 per share plus an amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution is made in full.
Series A Preferred Stock, Series B Convertible Preferred Stock, and Series C Cumulative Convertible Preferred Stock are pari passu with respect to dividend and liquidation preferences.
The holders of shares of Series B Convertible Preferred Stock have the right to convert such shares into shares of common stock at a conversion ratio equal to the quotient of: (i) the $1,000 liquidation preference; divided by
(ii) the tangible book value per share of common stock, calculated on the basis of BayFirst’s financial statements, as of the last day of the calendar quarter occurring prior to the date on which a holder exercises the conversion right; provided, however, that tangible book value shall be adjusted to reflect a subsequent quarter end only on the last day of the month succeeding such quarter end.
On the tenth anniversary of the issuance of any Series B Convertible Preferred Stock, BayFirst must redeem such shares; provided, however, that BayFirst will not be so obligated if it does not have adequate funds to pay the redemption price or is prohibited by law or otherwise from redeeming the shares. BayFirst may redeem any portion of the outstanding shares of Series B Convertible Preferred Stock at any time after the earlier of: (i) the third anniversary of their issuance; or (ii) the consummation of the first sale of shares of common stock in a bona fide underwritten public offering that results in aggregate net proceeds of not less than $30.0 million. The redemption price in either instance will be $1,000 per share plus an amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution.
Series C Cumulative Convertible Preferred Stock
An additional 10,000 shares of preferred stock have been designated as Series C Cumulative Convertible Preferred Stock. Each share of Series C Cumulative Convertible Preferred Stock has the same relative rights and is identical in all respects with every other share of Series C Cumulative Convertible Preferred Stock. The holders of Series C Convertible Preferred Stock do not have voting rights, except as required by the Florida Business Corporation Act.
The holders of shares of Series C Cumulative Convertible Preferred Stock are entitled to receive quarterly cash dividends at 11% per annum (subject to increase to 12% if we have not redeemed the shares by the tenth anniversary of their issuance). The terms our Series C Cumulative Convertible Preferred Stock prohibit us from declaring or paying any dividends on any junior series of our capital stock, including our common stock, or from repurchasing, redeeming or acquiring such junior stock, unless we have declared and paid full dividends on our outstanding preferred stock for the most recently completed dividend period.
Upon the dissolution, liquidation or winding up of the affairs of BayFirst, whether voluntary or involuntary, the holders of Series C Cumulative Convertible Preferred Stock then outstanding, together with holders of shares of any preferred shares then outstanding ranking on a parity with the Series C Preferred Stock upon dissolution, liquidation or winding up, shall be entitled to receive and to be paid out of the assets of BayFirst (or the proceeds thereof) available for distribution to the holders of Series C Cumulative Convertible Preferred Stock after satisfaction of claims of creditors of BayFirst and any distribution or payments due to holders of preferred shares higher in priority
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to the Series C Cumulative Convertible Preferred Stock, but before any distribution or payment shall be made in respect of the common shares or with respect to preferred shares lower in priority to the Series C Cumulative Convertible Preferred Stock, an amount equal to the liquidation preference with respect to such shares. The liquidation preference for Series C Cumulative Convertible Preferred Stock is $1,000 per share plus an amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution is made in full.
Series A Preferred Stock, Series B Convertible Preferred Stock, and Series C Cumulative Convertible Preferred Stock are pari passu with respect to dividend and liquidation preferences.
The holders of shares of Series C Cumulative Convertible Preferred Stock have the right to convert such shares into shares of common stock at a conversion ratio equal to the quotient of: (i) the $1,000 liquidation preference; divided by (ii) the tangible book value per share of common stock, calculated on the basis of BayFirst’s financial statements, as of the last day of the calendar quarter occurring prior to the date on which a holder exercises the conversion right; provided, however, that tangible book value shall be adjusted to reflect a subsequent quarter end only on the last day of the month succeeding such quarter end.
On the tenth anniversary of the issuance of any Series C Cumulative Convertible Preferred Stock, BayFirst must redeem such shares; provided, however, that BayFirst will not be so obligated if it does not have adequate funds to pay the redemption price or is prohibited by law or otherwise from redeeming the shares. BayFirst may redeem any portion of the outstanding shares of Series C Cumulative Convertible Preferred Stock at any time after the earlier of: (i) the third anniversary of their issuance; or (ii) the consummation of the first sale of shares of common stock in a bona fide underwritten public offering that results in aggregate net proceeds of not less than $30.0 million. The redemption price in either instance will be $1,000 per share plus an amount equal to all accumulated dividends thereon (whether or not earned or declared but without interest) to the date payment of such distribution.
Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series D
Holders of shares of Series D Preferred Stock are entitled to receive, when, as and if declared by the Board out of funds of the Company legally available therefor, pari passu with the shares of Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series E, cumulative dividends in arrears at the rate per annum of 11% per share, payable semi-annually on June 15 and December15 of each year, commencing on December 15, 2026. Dividends may be paid in cash or in kind through the issuance of additional shares of Series D Preferred Stock. To the extent that such dividends are not paid semi-annually, then such unpaid dividends will accrue and compound until paid. The holders of Series D Preferred Stock will not be entitled to receive any dividends on shares of Series D Preferred Stock converted to Common Stock on or prior to December 15, 2026.
The holders of shares of Series D Preferred Stock do not have any voting rights, except for certain protective matters such as amendments to the Company’s articles of incorporation that create any class or series of capital stock of the Company ranking senior to the Series D Preferred Stock.
Whenever dividends payable on the shares of Series D Preferred Stock have not been paid for an aggregate of three or more six-month dividend periods, in each case whether or not consecutive, the authorized number of directors of the Company shall automatically be increased by two and the holders of the Series D Preferred Stock shall have the right to elect two directors to fill such newly created directorships at the Company’s next annual meeting of shareholders (or at a special meeting called for that purpose prior to such next annual meeting) and at each subsequent annual meeting of shareholders until all accrued and unpaid dividends for all past six-month dividend periods, including the latest completed dividend period, on all outstanding shares of Series D Preferred Stock have been declared and paid in full.
Within five business days after the date on which (i) required stockholder approvals have been received, (ii) articles of amendment have been filed with the Florida Department of State to increase the number of authorized shares of common stock to at least 100,000,000 shares and (iii) a certificate of amendment has been issued by the Florida Department of State with respect thereto (the “Conversion Date”), all outstanding shares of Series D Preferred Stock (with certain limitations) shall automatically convert into shares of common stock at the appropriate
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conversion rate. If, however, the Company’s shareholders have approved the conversion proposal but not the articles amendment proposal, then a partial conversion shall occur.
Prior to conversion of the Series D Preferred Stock into common stock, no dividend or distribution shall be declared or paid upon any shares of common stock or other class or series of stock junior in priority to the Series D Preferred Stock.
Shares of Series D Preferred Stock duly converted, or otherwise reacquired by the Company, will resume the status of authorized and unissued Preferred Stock, undesignated as to series and available for future issuance (provided that any such cancelled shares of Series D Preferred Stock may be reissued only as shares of any series of preferred stock other than Series D Preferred Stock).
The shares of Series D Preferred Stock are senior to shares of common stock, such that in the event of any liquidation, dissolution or winding up of the Company’s affairs, each holder of shares of Series D Preferred Stock will be entitled to receive for each share of Series D Preferred Stock, out of the assets of the Company or proceeds thereof available for distribution to shareholders of the Company, before any distribution of such assets or proceeds is made to the holders of common stock, pari passu with the Series E Preferred Stock, payment in full in an amount equal to the sum of (i) the liquidation amount (which is initially $10,000.00 per share of Series D Preferred Stock) and (ii) any declared and unpaid dividends on such share. In the case of a merger, sale of substantially all of the Company’s assets or certain other reorganization events, each holder of Series D Preferred Stock will be entitled to receive for each share of Series D Preferred Stock, out of the assets of the Company or proceeds thereof (whether capital or surplus), legally available for distribution to the shareholders of the Company, a preference distribution equal to two times the amount of the liquidation preference.
Mandatorily Convertible Cumulative Perpetual Preferred Stock, Series E
The terms of the Series E Preferred Stock are generally the same as the Series D Preferred Stock, except that the shares of Series E Preferred Stock are not convertible in the hands of the initial holder or any other holder that is not a “Permitted Transferee.” A “Permitted Transferee” is a transferee that is not affiliated with the initial holder and that obtained shares of Series E Preferred Stock through certain permitted transfers or from another transferee that is a Permitted Transferee.
Transfer Agent and Warrant Agent
Continental Stock Transfer & Trust Company serves as our stock transfer agent and registrar. It also serves as our warrant agent. Its address is 1 State Street, 30th Floor, New York, New York 10004 and its telephone number is (212) 509-4000.
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INDEMNIFICATION
Under Florida law, a corporation may indemnify its directors and officers against liability if the director or officer acted in good faith and with a reasonable belief that his actions were in the best interests of the corporation, or at least not adverse to the corporation’s best interests, and, in a criminal proceeding, if the individual had no reasonable cause to believe that the conduct in question was unlawful. Under Florida law, a corporation may not indemnify an officer or director against liability in connection with a claim by, or in the right of, the corporation in which such officer or director was adjudged liable to the corporation or in connection
with any other proceeding in which the officer or director was adjudged liable for receiving an improper personal benefit. However, a corporation may indemnify against the reasonable expenses associated with such proceeding. A corporation may not indemnify against breaches of the duty of loyalty. Florida law provides for mandatory indemnification against all reasonable expenses incurred in the successful defense of any claim made or threatened, regardless of whether such claim was by or in the right of the corporation, unless limited by the corporation’s articles of incorporation. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether the director or officer met the good faith and reasonable belief standards of conduct set out in the statute. Unless otherwise stated in the articles of incorporation, officers of a corporation are also entitled to the benefit
of the above statutory provisions.
Consistent with Florida law, both BayFirst’s and the Bank’s bylaws provide for the indemnification of our directors or officers to the fullest extent permitted by applicable law.
Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers, or persons controlling the Company pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in that Act and is therefore unenforceable.
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of material U.S. federal income tax consequences relating to the ownership and disposition of shares of our common stock purchased in this offering. This summary is based on the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury Regulations promulgated thereunder, published administrative positions of the IRS and judicial decisions, all as in effect on the date hereof. Those authorities may be changed or subject to new interpretations, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those summarized below. We have not sought, and do not expect to seek, any ruling from the IRS with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court will agree with our statements and conclusions or that a court would not sustain any challenge by the IRS in the event of litigation. Moreover, this summary does not address any U.S. federal non-income (including estate or gift), state, local or non-U.S. tax considerations, the Medicare tax imposed on certain net investment income or considerations under any applicable tax treaty.
This summary applies only to holders who purchase shares of our common stock in this offering as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This summary is general in nature and does not purport to deal with all aspects of U.S. federal income taxation that may be relevant to particular holders in light of their personal circumstances or status (for example, U.S. holders subject to the alternative minimum tax) or special rules that may apply to certain holders, including, without limitation, financial institutions, regulated investment companies, real estate investment trusts, holders who are dealers in securities or foreign currency, traders in securities that elect to use a mark-to-market method of accounting for securities holdings, tax-exempt organizations, insurance companies, S-corporations, persons liable for alternative minimum tax, holders who hold such stock as part of a hedge, straddle, conversion, constructive sale or other integrated security transaction, holders whose functional currency is not the U.S. dollar. Additionally, this discussion does not address U.S. holders who beneficially own our shares through either a “foreign financial institution” (as such term is defined in Section 1471(d) (4) of the Code) or certain other non-U.S. entities specified in Section 1472 of the Code.
If any entity or arrangement that is treated as a partnership for U.S. federal income tax purposes is the beneficial owner of shares of our common stock, the U.S. federal income tax treatment of a partner or owner in such partnership generally will depend upon the tax status of the partner and the activities of the partner and the partnership. Holders that are partnerships (and partners or owners in such partnerships) are urged to consult their own tax advisors as to the particular U.S. federal income tax consequences applicable to them.
THE FOLLOWING DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR CAREFUL TAX PLANNING AND ADVICE. HOLDERS OF SHARES OF OUR COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE CONSEQUENCES UNDER FEDERAL ESTATE AND GIFT TAX LAWS, FOREIGN, STATE AND LOCAL LAWS AND TAX TREATIES OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF SHARES OF OUR COMMON STOCK.
Tax Consequences to U.S. Holders
A “U.S. holder” means a beneficial owner of shares of our common stock that is or is treated as, for U.S. federal income tax purposes, any of the following:
•an individual who is a citizen or resident of the United States;
•a corporation created or organized in or under the laws of the United States or any state thereof or the District of Columbia;
•an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
•a trust if it (1) is subject to the primary supervision of a court within the United States and one or more United States persons, as defined under Section 7701(a)(30) of the Code, have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable United States Treasury Regulations to be treated as a United States person.
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Distributions
Distributions with respect to shares of our common stock will be taxable as dividend income when actually or constructively received to the extent of our current or accumulated earnings and profits as determined for U.S. federal income tax purposes.
Dividend income received by certain non-corporate U.S. holders with respect to shares of our common stock generally will be “qualified dividends” subject to preferential rates of U.S. federal income tax, under current law, provided that the U.S. holder meets the applicable holding period and other requirements. Dividend income on shares of our common stock paid to U.S. holders that are domestic corporations generally will qualify for the dividends-received deduction if the requisite holding period is satisfied.
To the extent that the amount of a distribution exceeds our current and accumulated earnings and profits, such distribution will be treated first as a tax-free return of capital to the extent of the holder’s adjusted tax basis in such shares of our common stock and thereafter as capital gain. Such capital gain will be long-term capital gain if the holder’s holding period for such shares is more than one year at the time of the applicable distribution. Under current law, long-term capital gain of a non-corporate U.S. holder is generally taxed at preferential rates of U.S. federal income tax.
Sale, Exchange, Redemption or Other Taxable Disposition of Common Stock
If a U.S. holder sells or otherwise disposes of shares of our common stock in a taxable transaction, the U.S. holder will generally recognize capital gain or loss equal to the difference between the amount realized and the holder’s adjusted tax basis in the shares. The amount realized is generally the amount of cash received plus the fair market value of any other property received for such shares. Such capital gain or loss will be long-term capital gain or loss if the holder’s holding period for such shares is more than one year at the time of disposition. Under current law, long-term capital gain of a non-corporate U.S. holder is generally taxed at preferential rates of U.S. federal income tax. The deductibility of capital losses is subject to limitations.
Information Reporting and Backup Withholding
A U.S. holder may be subject to information reporting and/or backup withholding with respect to dividend payments and the gross proceeds from the disposition of shares of our common stock a. Backup withholding may apply under certain circumstances if the U.S. holder: (i) fails to furnish the holder’s social security or other taxpayer identification number (a “TIN”); (ii) furnishes an incorrect TIN; (iii) fails to report interest or dividends properly; or (iv) fails to provide a certified statement, signed under penalty of perjury, that the TIN provided is correct, that the holder is not subject to backup withholding and that the U.S. holder is a United States person for U.S. federal income tax purposes on IRS Form W-9. Any amount withheld from a payment under the backup withholding rules is allowable as a credit against (and may entitle the holder to a refund with respect to) the holder’s U.S. federal income tax liability, provided that the required information is timely furnished to the IRS. Certain persons are exempt from information reporting and backup withholding, including corporations and certain financial institutions, provided that they demonstrate their exempt status. U.S. holders are urged to consult their own tax advisors as to their qualification for exemption from backup withholding and the procedure for obtaining such exemption.
Tax Consequences to Non-U.S. Holders
A “non-U.S. holder” means a beneficial owner of shares of our common stock that is, for U.S. federal income tax purposes, an individual, corporation, estate or trust and is not a U.S. holder.
Taxation of Distributions on Common Stock
Any distributions of cash or property to a non-U.S. holder made with respect to our common stock generally will be subject to withholding tax to the extent paid out of our current or accumulated earnings and profits as determined for U.S. federal income tax purposes, if any, at a rate of 30% (or a lower rate prescribed by an applicable income tax treaty). In order to obtain a reduced withholding tax rate under a tax treaty, if applicable, a non-U.S.
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holder will be required to provide a properly completed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, certifying the holder’s entitlement to benefits under a treaty. In addition, a non-U.S. holder will not be subject to withholding tax if the non-U.S. holder provides an IRS Form W-8ECI certifying that the distributions are effectively connected with the holder’s conduct of a trade or business within the United States (and, if an applicable income tax treaty so provides, are attributable to a permanent establishment or fixed base maintained by such non-U.S. holder within the United States); instead, the non-U.S. holder generally will be subject to U.S. federal income tax, net of certain deductions, with respect to such income at the same rates applicable to United States persons. If a non-U.S. holder is a corporation, a “Branch Profits Tax” of 30% (or a lower rate prescribed by an applicable income tax treaty) also may apply to such effectively connected income. Non-U.S. holders may be required to periodically update their IRS Forms W-8. The U.S. federal income tax treatment of any distribution is also subject to the discussion below under the headings “Information Reporting and Backup Withholding” and “FATCA.”
Sale or Other Disposition of Our Common Stock
Subject to the discussions below regarding backup withholding and FATCA, a non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized on a sale or other disposition of shares of our common stock unless:
•such gain is effectively connected with the holder’s conduct of a trade or business within the United States (and, if an applicable income tax treaty so provides, is attributable to a permanent establishment or fixed base maintained by such non-U.S. holder in the United States);
•such non-U.S. holder is an individual who is present in the United States for 183 days or more during the taxable year in which gain is realized and certain other conditions are met; or
•we are or have been a “United States real property holding corporation”, (a “USRPHC”), for U.S. federal income tax purposes during the five-year period preceding such disposition (or the Non-U.S. holder’s holding period, if shorter) unless our Common Stock is regularly traded on an established securities market and the non-U.S. holder held no more than 5% of our outstanding Common Stock, directly or indirectly, actually or constructively, during the shorter of the five-year period ending on the date of the disposition or the period that the non-U.S. holder held our Common Stock.
Gain that is effectively connected with the Non-U.S. holder’s conduct of a trade or business within the United States (and, if an applicable income tax treaty so provides, is attributable to a permanent establishment or fixed base maintained by such Non-U.S. holder within the United States) generally will be subject to U.S. federal income tax, net of certain deductions, at the same rates applicable to U.S. persons. If a Non-U.S. holder is a corporation, a Branch Profits Tax of 30% (or a lower rate prescribed in an applicable income tax treaty) also may apply to such effectively connected gain.
A domestic corporation is treated as a USRPHC if the fair market value of its United States real property interests equals or exceeds 50% of the sum of (1) the fair market value of its United States real property interests, (2) the fair market value of its non-United States real property interests, and (3) the fair market value of any other of its assets which are used or held for use in a trade or business. Although there can be no assurance, we believe that we are not currently, and we do not anticipate becoming, a USRPHC. In addition, no assurance can be provided that our common stock will be regularly traded on an established securities market. Non-U.S. holders are urged to consult their own tax advisors regarding the U.S. federal income tax considerations that could result if we are, or become, a USRPHC and the exception for 5% or less stockholders.
Information Reporting and Backup Withholding
Generally, distributions on our common stock and the amount of tax, if any, withheld with respect to such distributions will be reported annually to the IRS and to non-U.S. holders. Copies of the information returns reporting such distributions and withholding may also be made available to the tax authorities in the country in which a non-U.S. holder resides under the provisions of an applicable income tax treaty.
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If a non-U.S. holder complies with certification procedures to establish that the holder is not a United States person, backup withholding generally should not apply to distributions on our common stock and information reporting and backup withholding generally should not apply to the proceeds from a sale or other disposition of shares of our common stock. Generally, a non-U.S. holder will comply with such procedures if it provides a properly executed IRS Form W-8BEN or W-8BEN-E (or other IRS Form W-8), as applicable, or otherwise meets documentary evidence requirements for establishing that it is a not a United States person, or otherwise establishes an exemption. The amount of any backup withholding will generally be allowed as a refund or credit against the non-U.S. holder’s U.S. federal income tax liability, provided that the required information is timely furnished to the IRS.
FATCA
Provisions of the Code commonly referred to as the Foreign Account Tax Compliance Act (“FATCA”), generally impose a 30% withholding tax on dividends on our common stock and gross proceeds from the sale or other disposition of our common stock if paid to a foreign entity unless (1) if the foreign entity is a “foreign financial institution,” the foreign entity undertakes certain due diligence, reporting, withholding, and certification obligations, (2) if the foreign entity is not a “foreign financial institution,” the foreign entity identifies certain of its U.S. investors, or (3) the foreign entity is otherwise exempted under FATCA.
Withholding under FATCA generally applies to payments of dividends on our common stock. While withholding under FATCA may apply to payments of gross proceeds from a sale or other disposition of our common stock, under proposed Treasury Regulations, withholding on payments of gross proceeds is not required. Although such regulations are not final, applicable withholding agents may rely on the proposed regulations until final regulations are issued.
If withholding under FATCA is required on any payment related to our common stock, holders not otherwise subject to withholding (or that otherwise would be entitled to a reduced rate of withholding) on such payment may be able to seek a refund or credit from the IRS. An intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this section. Non-U.S. holders should consult their own tax advisors regarding the possible implications of FATCA on their investment in our common stock and the entities through which they hold our common stock.
THE PRECEDING DISCUSSION OF MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES IS NOT TAX ADVICE. HOLDERS OF SHARES OF OUR COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AND THE CONSEQUENCES UNDER FEDERAL ESTATE AND GIFT TAX LAWS, FOREIGN, STATE AND LOCAL LAWS AND TAX TREATIES OF THE ACQUISITION, OWNERSHIP AND DISPOSITION OF SHARES OF OUR COMMON STOCK.
LEGAL MATTERS
Certain legal matters, including, among other things, the validity of the shares of common stock offered hereby, have been passed upon by Igler and Pearlman, P.A., Tallahassee, Florida, legal counsel to BayFirst. The sales agent is represented by Alston & Bird LLP, Atlanta, Georgia.
EXPERTS
The audited consolidated financial statements of BayFirst Financial Corp. as of December 31, 2025 and 2024, and for the years then ended, have been audited by Forvis Mazars, LLP, independent registered public accounting firm, as set forth in their report thereon, included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2025, and incorporated herein by reference. Such consolidated financial statements have been incorporated by reference herein in reliance upon the report given on the authority of such firm as experts in accounting and auditing.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the shares of common stock covered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement, some of which is contained in exhibits to the registration statement as permitted by the rules and regulations of the SEC. For further information with respect to us and our common stock, we refer you to the registration statement, including the exhibits filed as a part of the registration statement. Statements contained in this prospectus concerning the contents of any contract, or any other document, are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, please see the copy of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects by the filed exhibit. The SEC maintains an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
We are subject to the information and reporting requirements of the Exchange Act and, in accordance with this law, file periodic reports, proxy statements, and other information with the SEC. These periodic reports, proxy statements, and other information are available for inspection and copying at the website of the SEC referred to above.
We also maintain a website at www.bayfirstfinancial.com. You may also access those materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on our website is not a part of this prospectus and the inclusion of our website address in this prospectus is an inactive textual reference only.
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Until ____, 2026, all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
BayFirst Financial Corp.
[ ], 2026
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses to be paid by us in connection with this registration statement and the listing of our common stock. All amounts shown are estimates except for the SEC registration fee and the listing fee.
SEC registration fee | $ | 1,986 | |||
Printing fees and expenses | 5,000 | ||||
Legal fees and expenses | 100,000 | ||||
Accounting fees and expenses | 20,000 | ||||
Sales agent commissions and expenses | 287,565 | ||||
Custodian, transfer agent, and registrar fees | 20,000 | ||||
Other advisors’ fees | 20,000 | ||||
Miscellaneous | 125,449 | ||||
Total | $ | 580,000 | |||
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Florida law, a corporation may indemnify its directors and officers against liability if the director or officer acted in good faith and with a reasonable belief that his actions were in the best interests of the corporation, or at least not adverse to the corporation’s best interests, and, in a criminal proceeding, if the individual had no reasonable cause to believe that the conduct in question was unlawful. Under Florida law, a corporation may not indemnify an officer or director against liability in connection with a claim by or in the right of the corporation in which such officer or director was adjudged liable to the corporation or in connection with any other proceeding in which the officer or director was adjudged liable for receiving an improper personal benefit. However, a corporation may indemnify against the reasonable expenses associated with such proceeding. A corporation may not indemnify against breaches of the duty of loyalty. Florida law provides for mandatory indemnification against all reasonable expenses incurred in the successful defense of any claim made or threatened, regardless of whether such claim was by or in the right of the corporation, unless limited by the corporation’s articles of incorporation. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, regardless of whether the director or officer met the good faith and reasonable belief standards of conduct set out in the statute. Unless otherwise stated in the articles of incorporation, officers of a corporation are also entitled to the benefit of the above statutory provisions.
Consistent with Florida law, both the Company’s and the Bank’s bylaws provide for the indemnification of our directors or officers to the fullest extent permitted by applicable law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to our directors and officers, or to persons controlling us, pursuant to our bylaws or Florida law, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
II-1
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Since January 1, 2023, we sold the following unregistered securities:
Series C Preferred Stock
Date | Number of Shares | Proceeds | Sales Agent | Commissions | Class of Purchaser | Exemption Claimed | ||||||||||||||||||||||||||||||||
9/29/2023 | 1,835 | $1,835,000 | NA | $ | — | Accredited Investors | ||||||||||||||||||||||||||||||||
10/18/2023 | 1,995 | $ | 1,995,000 | NA | $ | — | Accredited Investors | |||||||||||||||||||||||||||||||
11/2/2023 | 1,760 | $ | 1,760,000 | NA | $ | — | Accredited Investors | |||||||||||||||||||||||||||||||
11/30/2023 | 731 | $ | 731,000 | NA | $ | — | Accredited Investors | |||||||||||||||||||||||||||||||
12/292023 | 125 | $ | 125,000 | NA | $ | — | Accredited Investors | |||||||||||||||||||||||||||||||
Series D Preferred Stock
Date | Number of Shares | Proceeds | Sales Agent | Commissions | Class of Purchaser | Exemption Claimed | ||||||||||||||||||||||||||||||||
4/28/2026 | 4,000 | $ | 40,000,000 | Hovde Group, LLC | $ | 2,400,000 | Accredited Investors | Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D | ||||||||||||||||||||||||||||||
Series E Convertible Preferred Stock
Date | Number of Shares | Proceeds | Sales Agent | Commissions | Class of Purchaser | Exemption Claimed | ||||||||||||||||||||||||||||||||
4/28/2026 | 4,000 | $ | 40,000,000 | Hovde Group, LLC | $ | 2,400,000 | Accredited Investors | Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D | ||||||||||||||||||||||||||||||
II-2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) Exhibits.
Exhibit Number | Exhibit Name | |||||||
1.1 | ||||||||
*3.1 | ||||||||
*3.2 | ||||||||
*3.3 | ||||||||
*3.4 | ||||||||
*3.5 | ||||||||
*3.6 | ||||||||
*4.1 | ||||||||
*4.2 | ||||||||
*4.3 | ||||||||
*4.4 | ||||||||
5.1 | ||||||||
*10.1 | ||||||||
*10.2 | ||||||||
*10.3 | ||||||||
*10.4 | ||||||||
*10.5 | ||||||||
*10.6 | ||||||||
*10.7 | ||||||||
*10.8 | ||||||||
*10.9 | ||||||||
*10.10 | ||||||||
*10.11 | ||||||||
*10.12 | ||||||||
*10.13 | ||||||||
*10.14 | ||||||||
*10.15 | ||||||||
*10.16 | ||||||||
*10.17 | ||||||||
*10.18 | ||||||||
*10.19 | ||||||||
*21.1 | ||||||||
23.1 | ||||||||
23.2 | ||||||||
24.1 | ||||||||
107 | ||||||||
ITEM 17. UNDERTAKINGS.
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;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in 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 Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement.
(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2)That, for the purpose of determining any liability under the Securities Act of 1933, each such 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 that 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:
(A)Each prospectus filed by the registrant pursuant to Rule 424(b)(3) (§ 230.424(b)(3) of this chapter) 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
(B)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) (§ 230.424(b)(2), (b)(5), or (b)(7) of this chapter) 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) (§ 230.415(a)(1)(i), (vii), or (x) of this chapter) 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 the 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 (§ 230.424 of this chapter);
(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.
The undersigned 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 section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of St. Petersburg, State of Florida on April 30, 2026
BAYFIRST FINANCIAL CORP.
/s/ Robin L. Oliver
Robin L. Oliver, President and
Principal Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robin L. Oliver and Scott J. McKim, and each of them, as his or her true and lawful attorneys-in-fact and agents, 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 the registration statement on Form S-1 of BayFirst Financial Corp. and any or all amendments (including post-effective amendments) thereto and any new registration statement with respect to the offering contemplated thereby filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their, 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, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||||||||||||
/s/ Derek S. Berset Derek S. Berset | Director | April 30, 2026 | ||||||||||||
/s/ Mark S. Berset Mark S. Berset | Director | April 30, 2026 | ||||||||||||
/s/ Dennis R. DeLoach, III Dennis R. DeLoach, III | Director | April 30, 2026 | ||||||||||||
/s/ Alexander Harris Alexander Harris | Director | April 30, 2026 | ||||||||||||
/s/ Anthony N. Leo Anthony N. Leo | Director | April 30, 2026 | ||||||||||||
/s/ Scott J. McKim Scott J. McKim | Chief Financial Officer (Principal Financial And Accounting Officer) | April 30, 2026 | ||||||||||||
/s/ Robin L. Oliver Robin L. Oliver | President and Director (Principal Executive Officer) | April 30, 2026 | ||||||||||||
/s/ Christos Politis, M.D. Christos Politis, M.D. | Director | April 30, 2026 | ||||||||||||
/s/ Anthony Saravanos Anthony Saravanos | Director | April 30, 2026 | ||||||||||||
/s/ Bradly W. Spoor Bradly W. Spoor | Director | April 30, 2026 | ||||||||||||
/s/ Sheryl WuDunn Sheryl WuDunn | Director | April 30, 2026 | ||||||||||||
/s/ Barbara Zipperian Barbara Zipperian | Director | April 30, 2026 | ||||||||||||
BayFirst Financial Corp.
4,108,072 Shares of Common Stock, no par value
Placement Agency Agreement
April [_], 2026
Hovde Group, LLC
1629 Colonial Parkway
Inverness, IL 60067
Ladies and Gentlemen:
BayFirst Financial Corp., a Florida corporation (the “Company”), is offering, pursuant to the terms of this Placement Agency Agreement (this “Agreement”) and the Registration Statement (as hereinafter defined), an aggregate of up to approximately 4,108,072 shares (the “Shares”) of its common stock, no par value (the “Common Stock”), at the offering price per share of $3.50, for an aggregate offering amount of approximately $14,378,252 (the “Offering”). The Shares are more fully described in the Registration Statement (as hereinafter defined).
The Company hereby confirms its agreement, on the terms and subject to the conditions set forth herein, to retain the Placement Agent to assist the Company in offering and selling the Shares, as follows:
1.Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-1 (File No. 333-[_]), including a prospectus, relating to the Shares. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 information, and the term “Prospectus” means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Shares. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following information (collectively with the pricing information set forth on Schedule 1, the “Pricing Disclosure Package”): a Registration Statement and Preliminary Prospectus (if applicable) dated [_] and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Schedule 1 hereto.
“Applicable Time” means 5:00 P.M., Eastern time, on [_], 2026.
2.Appointment of Placement Agent and Purchase of Shares. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement:
(a)Hovde is hereby appointed as the Placement Agent for the Offering. The Placement Agent shall not be deemed an agent of the Company for any other purpose by virtue of this Agreement. The appointment and authorization of the Placement Agent hereunder shall expire on the Closing of the Offering, unless extended in writing by the Company and the Placement Agent. Either the Company or the Placement Agent may terminate this Agreement, with or without cause, upon delivery of 15 days’ prior written notice to the other party. This Agreement may be terminated at any time prior to the Closing Date by the Placement Agent by notifying the Company at any time at or before the Closing Date in the reasonable discretion of the Placement Agent if: (i) the United States engages in hostilities which have resulted in the declaration, on or after the date hereof, of a national emergency or war; or (ii) trading in the Shares or any securities of the Company has been suspended or materially limited by the Commission or trading generally on the New York Stock Exchange, Inc., the American Stock Exchange, Inc. or the Nasdaq Stock Market has been suspended or materially limited, or minimum or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities have been required, by any of said exchanges or by such system or by order of the Commission, FINRA, or any other governmental or regulatory authority; or (iii) a general moratorium on banking activities has been declared by any Federal or Florida state authority; or (iv) in the good faith judgment of the Representative, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus, a material adverse change in the financial condition, earnings or business affairs of the Company considered as a whole.
(b)On the terms and subject to the conditions set forth herein, the Placement Agent will utilize their “best efforts” to solicit investments from potential purchasers (each, individually a “Purchaser” and collectively, the “Purchasers”) for the Offering.
(c)Subject to the performance by the Company of all of its obligations to be performed under this Agreement and to the completeness and accuracy of all representations and warranties of the Company contained in this Agreement, the Placement Agent hereby accepts such agency and agrees to use its reasonable best efforts to assist the Company in finding potential Purchasers pursuant to the Offering. The Company acknowledges and agrees that the Placement Agent’s engagement hereunder is not an agreement by the Placement Agent or any of its affiliates to underwrite or purchase any securities or otherwise provide any financing. It is understood that the Placement Agent does not have any commitment or obligation to sell or
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purchase any of the Shares. No provision of this Agreement shall require the Placement Agent to expend or risk its own funds or incur any financial liability on behalf of any offeree or Purchaser of the Shares or otherwise.
(d)Each prospective Purchaser agreeing to purchase Shares shall be required to deliver, among other things, an executed subscription offer form (the “Subscription Offer Form”. The Company shall make available to each prospective Purchaser, at a reasonable time prior to the purchase of Shares, the opportunity to ask questions of and receive answers from the Company concerning the terms and conditions of the Offering. The Company will provide Purchasers the opportunity to obtain additional information necessary to verify the accuracy of the disclosure delivered in connection with the purchase of the Shares to the extent it possesses such information or can acquire it without unreasonable effort or expense. After the prospective Purchasers have had an opportunity to review all documents delivered in connection with the offer of the Shares and to address all inquiries, as appropriate, to the Company and the Placement Agent, a separate Subscription Offer Form shall be completed by each prospective Purchaser. The Company shall have the right to reject any investment in whole or in part, in the Company’s sole discretion.
(e)Investments shall be evidenced by the execution by each Purchaser of a Subscription Offer Form. No Subscription Offer Form shall be effective unless and until it is accepted by the Company. The Placement Agent shall not have any independent obligation to verify the accuracy or completeness of any information contained in any Subscription Offer Form or the authenticity, sufficiency, or validity of any check or other payment delivered by any prospective Purchaser in payment for Shares nor shall the Placement Agent incur any liability with respect to any such verification or failure to verify.
3.Representations and Warranties of the Company. The Company represents and warrants to the Placement Agent as of the date hereof, and as of the Closing Date, that:
(a)Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Placement Agent furnished to the Company by any Placement Agent expressly for use in any Preliminary Prospectus, which, for purposes of this Agreement, the Company and the Placement Agent hereby acknowledge and agree that such information is limited to the information set forth under the heading “Plan of Distribution” in the Preliminary Prospectus.
(b)Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
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the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Placement Agent furnished to the Company by any Placement Agent expressly for use in such Pricing Disclosure Package, which, for purposes of this Agreement, the Company and the Placement Agent hereby acknowledge and agree that such information is limited to the information set forth under the heading “Plan of Distribution” in the Preliminary Prospectus.
(c)Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives, other than the Placement Agent in their capacities as such) has not prepared, used, authorized, approved or referred to and will not prepare, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (each such communication by the Company or its agents and representatives (other than a communication referred to in clause (i) below) (each an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the documents listed on Schedule 1 hereto, (iii) each electronic road show or (iv) any other written communications approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with information relating to the Placement Agent furnished to the Company by the Placement Agent expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, which, for purposes of this Agreement, the Company and the Placement Agent hereby acknowledge and agree that such information is limited to the information set forth under the heading “Plan of Distribution” in the Preliminary Prospectus.
(d)No Other Offering Materials. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Placement Agent’s distribution of the Shares, any prospectus or other offering material in connection with the offering and sale of the Shares or other “written communication” (as defined in Rule 405 under the Securities Act Rules and Regulations) that constitutes an offer to sell the Shares other than any Preliminary Prospectus, the Pricing Prospectus, the Pricing Disclosure Package or the Prospectus or other materials permitted by the Securities Act to be distributed by the Company; provided, however, that, except as set forth on Schedule 1 hereto, the Company has not made and will not make any offer relating to the Shares that would constitute a Free Writing Prospectus, except in accordance with the provisions of Section 4(a)(xv) of this Agreement and, except as set
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forth on Schedule 1 hereto, the Company has not made and will not make any communication relating to the Shares that would constitute a Testing-the-Waters Communication.
(e)Emerging Growth Company. From the time of initial submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication (as defined below)) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).
(f)Registration Statement and Prospectus. The Registration Statement has been declared effective by the Commission at the Applicable Time. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Shares has been initiated or, to the knowledge of the Company, threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Placement Agent furnished to the Company by the Representative expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, which, for purposes of this Agreement, the Company and the Placement Agent hereby acknowledge and agree that such information is limited to the information set forth under the heading “Plan of Distribution” in the Preliminary Prospectus.
(g)Financial Statements. The financial statements of the Company, together with the related notes, set forth in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus comply in all material respects with the requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and fairly present in all material respects the financial condition of the Company and its consolidated subsidiaries as of the dates indicated therein and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted accounting principles in the United States (“GAAP”) consistently applied throughout the periods involved, except as may be expressly stated in the notes thereto; the supporting schedules (if any) included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus present fairly in all material respects in accordance with GAAP, except as may be expressly stated in the notes thereto, the information required to be stated therein; the selected financial data and the summary financial information included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus fairly
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present in all material respects the information shown therein and have been compiled in all material respects on a basis consistent with the audited financials included therein; all non-GAAP financial information, if any, included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus complies in all material respects with the requirements of Regulation G and Item 10 of Regulation S-K under the Securities Act; and there is no material transaction, arrangement or other relationship between the Company or any of its subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus under the Securities Act or the Securities Act Rules and Regulations. Forvis Mazars, LLP, the accounting firm that has expressed its opinion with respect to the financial statements and schedules (if any) filed as a part of the Registration Statement and included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, is (x) an independent public accounting firm within the meaning of the Securities Act and the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations promulgated thereunder (the “Exchange Act Rules and Regulations”), and applicable rules of the Public Company Accounting Oversight Board; (y) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder (the “Sarbanes-Oxley Act”)) that has not had its registration superseded or revoked and which has not requested that such registration be withdrawn; and (z) not and has not been, as relates to the Company, in violation of the auditor independence requirements of the Sarbanes-Oxley Act.
(h)No Material Adverse Change. Since the date of the most recent financial statements of the Company included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the capital stock (other than equity awards under existing equity incentive plans described in the Registration Statement, the Pricing Disclosure Package and the Prospectus), change in short-term debt or long-term debt of the Company or the Bank (except, in each case, as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus), or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock (except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus), or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position, shareholders’ equity, results of operations or prospects of the Company and the Bank taken as a whole; (ii) neither the Company nor the Bank has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and the Bank taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and the Bank taken as a whole; and (iii) neither the Company nor the Bank has sustained any loss or interference with its business that is material to the Company and the Bank taken as a whole and that is either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
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(i)Organization and Good Standing. The Company and the Bank have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except in each case where such failure would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, shareholders’ equity, results of operations or prospects of the Company and the Bank taken as a whole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company is duly registered with the Board of Governors of the Federal Reserve System (the “Federal Reserve”) as a bank holding company under the Bank Holding Company Act, as amended, 12 U.S.C. 1841 et seq.
(j)Company Subsidiary. BayFirst National Bank (the “Bank”) is the only subsidiary of the Company as of the date of this Agreement. Except for the Bank, the Company does not own beneficially, directly or indirectly, more than five percent (5%) of any class of equity securities or similar interests of any corporation, business trust, association or similar organization, and is not, directly or indirectly, a partner in any partnership or party to any joint venture. The Company owns, directly or indirectly, all of its interests in the Bank free and clear of any and all liens. The deposit accounts of the Bank are insured by the Federal Deposit Insurance Corporation (“FDIC”) to the fullest extent permitted by the Federal Deposit Insurance Act, as amended, 12 U.S.C. 1811 et seq., and the rules and regulations of the FDIC thereunder, and all premiums and assessments required to be paid in connection therewith have been paid when due (after giving effect to any applicable extensions). The Company beneficially owns all of the outstanding capital securities of, and has sole control of, the Bank.
(k)Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Capitalization”; all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and are not subject to any preemptive or similar rights; except as described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in the Company or the Bank, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of the Company or the Bank, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock of the Company conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the outstanding shares of capital stock or other equity interests of the Bank have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party, except, in each case, where such failure would not, individually or in the aggregate, have a Material Adverse Effect.
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(l)Stock Options. With respect to any stock options (the “Stock Options”) granted pursuant to the stock-based compensation plans of the Company and the Bank (the “Company Stock Plans”), (i) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, and (ii) each such grant was made in accordance with the terms of the Company Stock Plans and all other applicable laws and regulatory rules or requirements.
(m)Due Authorization. The Company has full right, power and authority to execute and deliver this Agreement and the Subscription Offer Form, and to perform its obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement and the Subscription Offer Form and the consummation by it of the transactions contemplated hereby and thereby has been duly and validly taken.
(n)Placement Agency Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(o)The Shares. The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable and will conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights.
(p)No Violation or Default. Neither the Company nor the Bank is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or the Bank is a party or by which the Company or the Bank is bound or to which any of the property or assets of the Company or the Bank is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental authority, regulatory authority or self-regulatory organization, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(q)No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares by the Company and the consummation by the Company of the transactions contemplated by this Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or the Bank is a party or by which the Company or the Bank is bound or to which any of the property or assets of the Company or the Bank is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or the Bank or (iii) result in the
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violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.
(r)No Consents Required. No consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement, except for the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable state securities laws in connection with the distribution of the Shares by the Placement Agent.
(s)Legal Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or the Bank is or may be a party or to which any property of the Company or the Bank is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or the Bank, would reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company, no such investigations, actions, suits or proceedings are threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending legal, governmental or regulatory actions, suits or proceedings that are required under the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(t)Independent Accountants. Forvis Mazars, LLP, who have reported on the audited consolidated financial statements and schedule of the Company and the Bank, is an independent registered public accounting firm with respect to the Company and the Bank within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act and, to the Company’s knowledge, is not and has not been in violation of the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and as required by the Securities Act. The consolidated financial statements of the Company and the related notes and schedule incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been prepared in conformity with the requirements of the Securities Act and the rules and regulations and present fairly the information shown therein.
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(u)Title to Assets. The Company and the Bank have good and marketable title in fee simple to all real property owned by them. The Company and the Bank have good and marketable title to all tangible personal property owned by them that is material to the business of the Company and the Bank, taken as whole, in each case free and clear of all Liens except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and the Bank. Any real property and facilities held under lease by the Company and the Bank are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and the Bank.
(v)Title to Intellectual Property. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, the Company and the Bank own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted and as proposed to be conducted, and, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, the conduct of their respective businesses will not conflict in any respect with any such rights of others. The Company and the Bank have not received any notice of any claim of infringement, misappropriation or conflict with any such rights of others in connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade names, copyrights and know-how, which would reasonably be expected to result in a Material Adverse Effect.
(w)No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or the Bank, on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or the Bank, on the other, that is required by the Securities Act to be described in the Registration Statement and the Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(x)Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof received by the Company as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(y)Taxes. The Company and the Bank have timely filed all material federal, state, local and foreign income and franchise tax returns required to be filed by them and are not in default in the payment of any material taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company or the Bank is contesting in good faith. There is no pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed material liability for any tax
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to be imposed upon the properties or assets of the Company or the Bank for which there is not an adequate reserve reflected in the Company’s financial statements included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus. The charges, accruals and reserves on the books of the Company and its subsidiaries in respect of any income and franchise tax liability for any years not finally determined are adequate in all material respects to meet any assessments or re-assessments for additional income tax for any years not finally determined. Except as otherwise disclosed in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus, there is no material unresolved tax deficiency that has been or would reasonably be expected to be asserted against the Company or the Bank or any of their respective properties or assets. On the Closing Date all stock transfer and other taxes that are required to be paid by the Company in connection with the sale of the Shares to be sold by the Company will have been fully paid by the Company.
(z)Licenses and Permits. The Company and the Bank possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor the Bank has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where such revocation, modification or failure to renew would not, individually or in the aggregate, have a Material Adverse Effect.
(aa)Labor Matters. No labor dispute with the employees of the Company or the Bank exists or, to the knowledge of the Company, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or the Bank’s principal suppliers, contractors or customers, in each case that would reasonably be expected to result in a Material Adverse Effect.
(bb)Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Pricing Disclosure Package, the Prospectus or the documents to be filed as exhibits thereto which have not been so described and filed as required.
(cc)Statistical Information. Any third-party statistical and market-related data included in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate in all material respects.
(dd)Compliance with Environmental Laws. Neither the Company nor the Bank is in violation of any statute, rule, regulation, decision or order of any Governmental Authority relating to the use, disposal or release of hazardous or toxic substances or relating to
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the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any investigation or remediation requirements pursuant to Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would, individually or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries presently anticipates incurring any material capital expenditures relating to compliance with Environmental Laws.
(ee)Hazardous Materials. There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused by the Company or the Bank (or, to the knowledge of the Company and the Bank, any other entity (including any predecessor) for whose acts or omissions the Company or the Bank is or could reasonably be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company or the Bank, or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could reasonably be expected to result in any liability under any Environmental Law, except for any violation or liability which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into, from or through any building or structure.
(ff)Compliance with ERISA. To the knowledge of the Company, no “prohibited transaction” as described in Section 406 of ERISA (as defined below) or Section 4975 of the Code (as defined below) has occurred with respect to any Employee Benefit Plan (as defined below), excluding transactions effected pursuant to a statutory or administrative exemption. Each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws, including but not limited to ERISA and the Code and, to the knowledge of the Company, no Pension Plan (as defined below) has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Pension Plan. No Pension Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no Employee Benefit Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within the meaning of Section 305 of ERISA). The present value of all benefits accrued under each Pension Plan did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the fair market value of the assets of each Pension Plan (determined based on those assumptions used to fund such Pension Plan). No “reportable event,” as defined in Section 4043(c) of ERISA, other than events for which the 30-
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day notice period has been waived, has occurred or is reasonably expected to occur. There has been no imposition or incurrence of any material liability under Title IV of ERISA, other than for Pension Benefit Guaranty Corporation premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate (as defined below). Each Employee Benefit Plan intended to be qualified under Code Section 401(a) is so qualified and has a favorable determination or opinion letter from the U.S. Internal Revenue Service (the “IRS”) upon which it can rely, and, to the knowledge of the Company, any such determination or opinion letter remains in effect and has not been revoked and nothing has occurred since the date of any such determination or opinion letter that is reasonably likely to adversely affect such qualification. No Employee Benefit Plan is maintained outside the jurisdiction of the United States or covers any employees or other service providers of the Company or the Bank who reside or work outside of the United States. The Company does not have any obligations under any collective bargaining agreement with any union and, to the knowledge of the Company, no organization efforts are underway with respect to Company employees. As used herein, “Code” means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA to which the Company or any of its subsidiaries is required to contribute on behalf of any of its employees or with respect to which the Company has any liability; “ERISA” means the Employee Retirement Income Security Act of 1974, as amended; “ERISA Affiliate” means any trade or business, whether or not incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b) and (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or Section 302 of ERISA); and “Pension Plan” means any employee pension benefit plan (other than an employee benefit plan of the type described in Section 4001(a)(3) of ERISA) that is maintained or is contributed to by the Company or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
(gg)Disclosure Controls. The Company and the Bank maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
(hh)Accounting Controls. The Company and the Bank maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
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in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company’s internal controls.
(ii)Insurance. The Company and the Bank are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company believes to be prudent and customary in the businesses and locations in which the Company and the Bank are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor the Bank has received any notice of cancellation of any such insurance, nor, to the Company’s Knowledge, will it or the Bank be unable to renew their respective existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(jj)No Unlawful Payments. Neither the Company nor the Bank, nor any director, officer or employee of the Company or the Bank nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or the Bank has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.
(kk)Anti-Money Laundering Laws. The operations of the Company and the Bank and, to the knowledge of the Company, their respective directors, officers, and employees as relates to the operations of the Company and the Bank, in all material respects are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Bank Secrecy Act, the money laundering statutes of all applicable jurisdictions and the rules and regulations thereunder issued, administered or enforced by any Governmental Authority (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Authority
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involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened. The Company and the Bank and, to the knowledge of the Company, their respective directors, officers, and employees as relates to the operations of the Company and the Bank, have conducted the business of the Company and the Bank in compliance in all material respects with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws.
(ll)OFAC. None of the Company, or the Bank or any officer or director of either the Company or the Bank, nor, to the knowledge of the Company, after due inquiry, any agent, employee, affiliate or person acting on behalf of the Company or the Bank, in all cases in the course of its activities on behalf of the Company or the Bank, is or has been (A) engaged in any services (including financial services), transfers of goods, software, or technology, or any other business activity related to (i) Cuba, Iran, North Korea, Syria, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 (“Sanctioned Countries”), (ii) the government of any Sanctioned Country, (iii) any person, entity or organization located in, resident in, formed under the laws of, or owned or controlled by the government of, any Sanctioned Country, or (iv) any person, entity or organization made subject of any sanctions (“Sanctions”) administered or enforced by the United States Government, including, without limitation, the list of Specially Designated Nationals (“SDN List”) of the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), or other relevant sanctions authority (collectively, “Sanctioned Persons”), and the Company will not directly or indirectly use the proceeds of the offering of the Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to the Bank, or any other person or entity, for the purpose of financing the activities of or business with any Sanctioned Person, or in any Sanctioned Country, that currently is the subject to any U.S. sanctions administered by OFAC or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC; (B) engaged in any transfers of goods, technologies or services (including financial services) that may reasonably be expected to assist the governments of Sanctioned Countries or facilitate money laundering or other activities proscribed by United States laws, rules or regulations; (C) a Sanctioned Person; or (D) located, organized or resident in any Sanctioned Country.
(mm)No Broker’s Fees. Neither the Company nor the Bank is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or the Bank or any Placement Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(nn)No Registration Rights. Except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no person has the right to require the Company or the Bank to register any securities for sale under the Securities
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Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Shares by the Company.
(oo)No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(pp)Margin Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Shares as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus will not violate Regulation T, U or X of the Federal Reserve or any other regulation of the Federal Reserve.
(qq)Forward-Looking Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus was so included by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates and other applicable facts and circumstances.
(rr)Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included in the Registration Statement, the Pricing Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(ss)Sarbanes-Oxley Act. The Company has taken all action reasonably necessary to ensure that, upon consummation of the transactions contemplated by this Agreement, it will be in compliance in all material respects with all provisions of the Sarbanes-Oxley Act with which the Company is required to comply as of such time.
(tt)Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the time period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(uu)Change in Control. The issuance of the Shares to the Purchasers as contemplated by the Offering has not and will not trigger any rights under any “change of control” provision in any of the agreements to which the Company is a party, including any employment, “change in control,” severance or other compensatory agreements and any benefit plan, which results in payments to the counterparty or the acceleration of vesting of benefits.
(vv)Application of Takeover Protections; Rights Agreements. The Company has not adopted any shareholder rights plan or similar arrangement relating to accumulations of
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beneficial ownership of its common stock or a change in control of the Company. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s organization certificate or the laws of Florida (other than those associated with regulatory approval of a change in control of the Company) which is or could become applicable to any Purchaser solely as a result of the Offering, including, without limitation, the Company’s issuance of the Shares.
(ww)Off Balance Sheet Arrangements. There is no material transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity.
(xx)Agreements with Regulatory Authorities. Except as set forth in Schedule 3(xx) hereto, the Company and the Bank are not subject to any cease-and-desist or other similar order or enforcement action issued by. The Company is not subject to any capital directive by any Governmental Entity, however, the Bank is subject to maintaining capital ratios above the regulatory minimum.
(yy)Exchange Listing and Exchange Act Registration. The Shares have been approved for listing on the Nasdaq Capital Market (“Nasdaq”). There are no affiliations with members of FINRA among the Company’s executive officers or directors or, to the knowledge of the Company, any five percent or greater shareholders of the Company or any beneficial owner of the Company’s unregistered equity securities that were acquired during the 180-day period immediately preceding the initial filing date of the Registration Statement. The Company is currently in compliance in all material respects with the applicable requirements of Nasdaq for maintenance of inclusion of the Common Stock thereon and has not received any written notice regarding the removal of the Company’s listing, or the rejection of the Company’s application for such listing, with such exchange.
(zz)Foreign Corrupt Practices Act. None of the Company, or its subsidiaries or, to the knowledge of the Company, any director, officer, agent or employee of the Company or its subsidiaries, in all cases in the course of its activities on behalf of the Company or its subsidiaries, has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (C) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), or any applicable non-U.S. anti-bribery statute or regulation; or (D) made, offered, agreed to, requested or taken an act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment. To the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(aaa)Lending Relationship. Except as disclosed in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus, the Company (A)
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does not have any material lending or other relationship with any bank or lending affiliate of the Placement Agent and (B) does not intend to use any of the proceeds from the sale of the Shares to repay any outstanding debt owed to any affiliate of the Placement Agent.
(bbb)Cybersecurity. (A) To the knowledge of the Company, except as disclosed in the Registration Statement, there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to any of the Company’s or the Bank’s information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any other third party that is maintained, processed or stored by the Company and the Bank and any such data processed or stored by third parties on behalf of the Company and the Bank), equipment or technology (collectively, “IT Systems and Data”), that would, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; (B) neither the Company nor the Bank have been notified of, and the Company has no knowledge of, any event or condition that would reasonably be expected to result in, any security breach or incident, unauthorized access or disclosure or other compromise to the Company or the Bank’s IT Systems and Data that would reasonably be expected to have a Material Adverse Effect; and (C) the Company and the Bank have implemented controls, policies, procedures, and technological safeguards reasonably designed to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data and that are reasonably consistent with industry standards and practices, or are required by applicable regulatory standards. The Company and the Bank are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any Governmental Authority relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except where the failure to do so would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ccc)Compliance with Privacy Statements. Except as would not, individually or in the aggregate, have a Material Adverse Effect, the Bank (A) complies with the Privacy Statements (as defined below) as applicable to any given set of personal information collected by the Bank from Individuals (as defined below), (B) complies with all applicable federal, state, local and foreign laws and regulations regarding the collection, retention, use, transfer or disclosure of personal information (as such term is defined in applicable data privacy laws) from Individuals, and (C) takes commercially reasonable measures, reasonably consistent with industry standards in the business in which the Bank is engaged, to protect and maintain the confidential nature of the personal information provided to the Bank by Individuals in accordance with the terms of the applicable Privacy Statements. Except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor the Bank has received any written notice of any claim or controversy regarding the Bank’s compliance with the Privacy Statements. As used herein, “Privacy Statements” means, collectively, any and all of the Bank’s public-facing privacy statements and policies published on the Bank’s websites or products or otherwise made externally available by the Bank regarding the collection, retention, use and distribution of personal information of any individual, including, without limitation, individual visitors or users of the Bank’s website or products (collectively, “Individuals”).
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(ddd)Bank Holding Company Act. The Company has been duly registered as, and meets in all material respects the applicable requirements for qualification as, a bank holding company under the applicable provisions of the Bank Holding Company Act of 1956, as amended. The activities of the Company are permitted of a bank holding company under applicable law and the rules and regulations and policies and interpretations of the Board of Governors of the Federal Reserve System (“Federal Reserve”). The activities of the Bank are permitted for the subsidiary of a bank holding company under applicable law and the rules and regulations and policies and interpretations of the Federal Reserve.
(eee)Compliance with Laws and Bank Regulatory Authorities. The Company and the Bank are conducting their respective businesses in compliance in all material respects with all federal, state, local and foreign statutes, laws, rules, regulations, decisions, directives, decrees and orders applicable to them. Neither the Company nor the Bank has received any oral or written communication from any Governmental Authority asserting that the Company or the Bank is not in compliance in all material respects with any such applicable statute, law, rule, regulation, decision, directive, decree or order. The Company and each of its subsidiaries are in compliance in all material respects with all applicable laws, rules and regulations of, or agreements with, the Federal Reserve, the Office of the Comptroller of the Currency (“OCC”) and any other applicable federal or state banking authorities, as applicable (collectively, the “Bank Regulatory Authorities”), including the Equal Credit Opportunity Act, the Fair Housing Act, the Truth in Lending Act, the Community Reinvestment Act (the “CRA”), the Home Mortgage Disclosure Act, the Bank Secrecy Act of 1970 (the “Bank Secrecy Act”), as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA Patriot Act”), to the extent such laws or regulations apply to the Company or the Bank, as applicable. The Company has no knowledge of any facts and circumstances, and has no reason to believe that any facts or circumstances exist, that would reasonably be expected to cause the Bank (A) to be deemed not to be in satisfactory compliance with the CRA and the regulations promulgated thereunder or to be assigned a CRA rating by federal or state banking regulators of lower than “satisfactory,” except as specifically disclosed in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus, or (B) to be deemed to be operating in violation, in any material respect, of the Bank Secrecy Act, the USA Patriot Act or any order issued with respect to the Anti-Money Laundering Laws (as defined below). As of the most recent fiscal quarter end and as of the date hereof, the Bank exceeded the standards necessary to be considered “well capitalized” under the regulatory framework for prompt corrective action of the FDIC. The Bank is the only depository institution subsidiary of the Company and the Bank is a member in good standing of the Federal Home Loan Bank System. The activities of the Bank are permitted under the laws and regulations of the State of the United States. The Company and each of its subsidiaries have filed all reports, registrations and statements, together with any required amendments thereto, that they were required to file with the Federal Reserve, the OCC, and any other applicable Bank Regulatory Authorities except where the failure to file would not have a Material Adverse Effect. All such reports and statements filed with any such regulatory body or authority are collectively referred to herein as the “Company Reports.” As of their respective dates, the Company Reports, as amended, complied as to form in all material respects with all the rules and regulations promulgated by the Federal Reserve, the OCC and any other applicable
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Bank Regulatory Authorities, as the case may be. Except as disclosed in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus, none of the Company, the Bank or any of their respective subsidiaries is currently a party or subject to any formal agreement, consent decree, directive, cease-and-desist order, order of prohibition or suspension, written commitment, supervisory agreement or other written statement as described under 12 U.S.C. 1818(u) with, or order issued by, the Federal Reserve, the OCC or any other applicable Bank Regulatory Authority in each and all such cases that restricts materially the conduct of its business, or in any manner relates to its capital adequacy, its credit policies or its management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions.
(fff)Securities Offerings. All offers and sales of the Company’s capital stock and debt or other securities by the Company (or others on the Company’s behalf) prior to the date hereof were made in compliance in all material respects with the Securities Act and the Securities Act Rules and Regulations and all other applicable state and federal laws or regulations, or any actions under the Securities Act and the Securities Act Rules and Regulations or any state or federal laws or regulations in respect of any such offers or sales are effectively barred by effective waivers or statutes of limitation. The Company has not, prior to the date hereof, made any offer or sale of securities which could be “integrated” for purposes of the Securities Act and the Securities Act Rules and Regulations with the offer and sale of the Shares pursuant to the Registration Statement and the Prospectus; and except as disclosed in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus, the Company has not sold or issued any security during the 180-day period preceding the date of the Prospectus, including but not limited to any sales pursuant to Section 4(a)(2) of the Securities Act or Commission Rule 144A or Commission Regulations D or S under the Securities Act Rules and Regulations, other than securities issued pursuant to employee benefit plans, qualified stock option plans or employee compensation plans or pursuant to outstanding options, rights or warrants pursuant to SEC Rule 701 as described in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and the Prospectus.
(ggg)Disclosure of Legal Matters. There are no statutes, regulations, legal or governmental proceedings or contracts or other documents required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or included as exhibits to the Registration Statement that are not described or included as required.
4.Representations and Warranties of Placement Agent. The Placement Agent represents and warrants to the Company that:
(a)The Placement Agent is registered as a broker-dealer under applicable federal and state laws, is a member in good standing of FINRA and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the services the Placement Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the
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Company under this Agreement, the Engagement Letter (as applicable) or otherwise in connection with the Offering.
(b)The Placement Agent will not provide any service or engage in any activity, and it will use its commercially reasonable efforts to not permit any of its employees, agents, or representatives to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the sale of the Shares, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
(c)Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Shares as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus shall control the conduct of the sale of the Shares, and neither the Placement Agent nor any of its respective employees, agents, representatives or affiliates shall take any action in connection with the sale of the Shares contrary to those terms and conditions.
(d)In connection with or during the course of the sale of the Shares, neither the Placement Agent nor any employee, agent, representative or affiliate of the Placement Agent will make any representation or provide any information to any Purchaser or potential Purchaser other than the representations and information contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus or other information specifically approved by the Company.
(e)This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and, when executed by the Company, will constitute the valid and binding agreement of the Placement Agent enforceable against it in accordance with its terms, except in all cases to the extent that (i) enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights and remedies generally or the rights of creditors or customers of registered broker-dealers whose accounts may be protected by the Securities Investor Protection Corporation; (ii) the availability of the equitable remedy of specific performance and injunctive relief is subject to the discretion of the court before which the proceedings may be brought; and (iii) the enforceability of the provisions hereof relating to indemnification and contribution may be limited by applicable federal, state or other securities laws, or the public policy underlying such laws.
(f)The Placement Agent and its employees, agents and representatives who shall perform any of the services required hereunder to be performed by it, shall be authorized and shall have all licenses, approvals and permits necessary to perform such services, and the Placement Agent shall be a registered broker-dealer and selling agent in the jurisdictions in which the Company is relying on such registration for the offer and sale of the Shares after the date of this Agreement.
(g)The execution and delivery of this Agreement by the Placement Agent, the fulfillment of the terms set forth herein and the consummation of the transactions contemplated
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hereby shall not violate or conflict with the organizing documents of the Placement Agent or violate, conflict with or constitute a breach of, or default (or an event which, with notice or lapse of time, or both, would constitute a default) under, any agreement, indenture or other instrument by which the Placement Agent is bound or under any governmental license or permit or any law, administrative regulation, authorization, approval or order or court decree, injunction or order, which breach, default or violation could have a material adverse effect on the condition (financial or otherwise), operations, business, properties or assets of the Placement Agent or its ability to perform its obligations under this Agreement.
(h)Any proceeds received by the Placement Agent to purchase Shares will be handled in accordance with applicable requirements of Rule 15c2-4 under the 1934 Act, by the prompt transmission of such proceeds to the escrow agent designated by the Company and the Placement Agent (the “Escrow Agent”). It is understood between the Company and the Placement Agent that the Placement Agent will not receive or handle any proceeds from the Purchasers in connection with the Offering.
(i)No action or proceeding against the Placement Agent before the Securities and Exchange Commission, FINRA, any state securities commission, or any state or federal court is pending or, to the Placement Agent’s knowledge, threatened concerning the Placement Agent’s activities as a registered and licensed broker-dealer which could have a material adverse effect on the condition (financial or otherwise), operations, business, properties or assets of the Placement Agent or its ability to perform its obligations under this Agreement.
(j)The information set forth under the heading entitled “Plan of Distribution” in the Registration Statement, the Pricing Disclosure Package and the Prospectus is the only written information furnished to the Company by and on behalf of the Placement Agent expressly for use in connection with the preparation of the Registration Statement, the Pricing Disclosure Package and the Prospectus, and it is correct and complete in all material respects and does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
5.Covenants of the Company. The Company covenants and agrees with the Placement Agent that:
(a)Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Placement Agent prior to 10:00 A.M., Eastern time, on the business day next succeeding the date of this Agreement in such quantities as the Representative may reasonably request.
(b)Delivery of Copies. The Company will deliver, without charge, (i) to the Representative, three signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith; and (ii) to the Placement Agent (A) a conformed copy of the Registration Statement as originally filed and
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each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and each Issuer Free Writing Prospectus) as the Placement Agent may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Shares as in the opinion of counsel for the Placement Agent a prospectus relating to the Shares is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Shares by any Placement Agent.
(c)Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to the Placement Agent and counsel for the Placement Agent copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Placement Agent reasonably object to within two business days. At the conclusion of any such two business day period, the Placement Agent shall have been deemed to have not objected to any such proposed amendment or supplement.
(d)Notice to the Placement Agent. The Company will advise the Placement Agent promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
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(e)Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Placement Agent thereof and forthwith prepare and, subject to Section 5(c) above, file with the Commission and furnish to the Placement Agent such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event or development shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will immediately notify the Placement Agent thereof and forthwith prepare and, subject to Section 5(c) above, file with the Commission (to the extent required) and furnish to the Placement Agent such amendments or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f)Commission Reports. The Company will file on a timely basis with the Commission such periodic and special reports as required by the Securities Act Rules and Regulations. The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Representative as soon as reasonably practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs, an earnings statement (in form complying with the provisions of Rule 158 under the Securities Act and satisfying the provisions of Section 11(a) of the Securities Act) covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement.
(g)Listing. The Company will use its commercially reasonable efforts to effect and maintain the listing of the Common Stock (including the Shares) on Nasdaq.
(h)Blue Sky Compliance. The Company shall take or cause to be taken all necessary action to qualify the Shares for sale under the securities laws of such domestic United States or foreign jurisdictions as the Placement Agent reasonably designates or as is necessary to effect the distribution of the Shares and to continue such qualifications in effect so long as required for the distribution of the Shares, except that the Company shall not be required in connection therewith to qualify as a foreign corporation (where not otherwise required) or to execute a general consent to service of process in any jurisdiction (where not otherwise required).
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(i)Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Use of proceeds”. The Company shall not invest or otherwise use the proceeds received by the Company from the sale of the Shares issued and sold by the Company in such a manner as would require the Company or the Bank to register as an investment company under the Investment Company Act.
(j)No Market Stabilization or Manipulation. The Company will not take, and will use commercially reasonable efforts to prohibit any affiliate of the Company from taking, directly or indirectly, any action designed to cause or result in or which constitutes or would reasonably be expected to constitute stabilization or manipulation of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the Shares or otherwise, and the Company will, and will use commercially reasonable efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M.
(k)No Other Finders or Brokers. During the term of the Placement Agent’s engagement hereunder the Company will not (i) offer any Shares for sale to, or solicit any offers to buy from, any person or persons, whether directly or indirectly, other than through the Placement Agent, if such person or persons were introduced to the Company by the Placement Agent, or (ii) engage in any discussions with any person other than representatives of the Placement Agent for the purpose of engaging, or considering the engagement of, such person as a finder or broker in connection with the sale by the Company of the Shares covered by this Agreement.
(l)Placement Agent Publicity. The Company agrees that upon consummation of the sale of the Shares, the Placement Agent may place “tombstone” advertisements in financial and other publications and media at its own expense describing its services to the Company hereunder.
(m)Public Announcements. Except as otherwise required by applicable law or the rules of any Governmental Entity, the Company shall not, during the period commencing on the date hereof and ending on the Closing Date, issue any press release or other communication, make any written or oral statement to any media organization or publication or hold any press conference, presentation or seminar, or engage in any other publicity with respect to the Company and/or the Bank, its financial condition, results of operations, business, properties, assets, or liabilities, or the Offering, without the prior written consent of the Representative, which consent shall not be unreasonably withheld, conditioned, or delayed, except in the ordinary course of business, to comply with applicable securities laws, and in both cases, not for the purpose of soliciting any interest in the Offering. Further, the Company shall not use the name of the Placement Agent or any officer, director, employee or shareholder thereof without the express written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, of such party and such person in any manner that is inconsistent with the statements made with respect to such persons in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
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(n)Escrow Account. The Company shall maintain a separate escrow account into which Purchasers’ subscription monies will be deposited upon receipt from the Purchasers in accordance with Section 4(h), as appropriate.
(o)Reports. The Company, during the Prospectus Delivery Period, will furnish to the Placement Agent, as soon as they are available, copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Company will be deemed to have furnished such reports and financial statements to the Placement Agent to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(p)Available Information. During a period of five years from the effective date of the Registration Statement, the Company will make available on EDGAR (or any successor or additional filing location required under applicable rules and regulations of the Commission) or furnish to the Representative copies of all reports or other material communications (financial or other) furnished to its shareholders generally, and will deliver to the Representative (A) as soon as reasonably practicable as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, and (B) such additional information concerning the business and financial condition of the Company as the Representative may from time to time reasonably request; provided, the Company will be deemed to have furnished such reports, financial statements and other information to the extent such reports, financial statements and other information is filed or furnished with the Commission and publicly available.
(q)Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(r)Filings. The Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
(s)Subscription Offer Forms. All Subscription Offer Forms received by the Company will be reviewed and be either remitted back to the Purchaser or forwarded to the Escrow Agent within one (1) business day of the date of receipt of such Subscription Offer Form. The Company will copy the Representative on all Subscription Offer Forms being forwarded to the Escrow Agent, as well as any correspondence between the Company and the Escrow Agent relating to the Offering.
(t)Issuer Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Placement Agent, which consent shall not be unreasonably withheld, conditioned, or delayed, and the Placement Agent represent and agree that, unless they obtain the prior consent of the Company, which consent shall not be unreasonably withheld, conditioned, or delayed, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Any such Issuer
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Free Writing Prospectus consented to by the Placement Agent and the Company is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus”. The Company represents that it has treated or agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping; any Issuer Permitted Free Writing Prospectus the use of which has been consented to by the Placement Agent is listed on Schedule 1 hereto. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
(u)Emerging Growth Company. The Company will promptly notify the Placement Agent if the Company ceases to be an Emerging Growth Company prior to the completion of the distribution of Shares within the meaning of the Securities Act.
(v)Depository Trust Company. The Company shall use its reasonable best efforts to permit the Shares to be eligible for clearance, settlement and trading in book-entry-only form through the facilities of Depository Trust Company.
(w)Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(x)Additional Acknowledgements. The Company acknowledges and agrees that:
(i)The financial models and presentations used by the Placement Agent in performing its services hereunder have been developed by and are proprietary to the Placement Agent. The Company further acknowledges and agrees that, except as required by applicable law, it will not reproduce or distribute all or any portion of such models or presentations without the prior written consent of the Placement Agent, which consent shall not be unreasonably withheld, conditioned, or delayed,.
(ii)The Placement Agent is a full service securities firm engaged in a wide range of businesses and from time to time, in the ordinary course of its business, the Placement Agent or its affiliates may hold long or short positions and trade or otherwise effect transactions for its own account or the account of its customers in debt or equity securities or loans of the companies which may be the subject of the transactions contemplated by this Agreement. During the course of the Placement Agent’s engagement with the Company, the Placement Agent may have in its possession material, non-public information regarding other companies that could potentially be relevant to the Company or the transactions contemplated herein but which cannot be shared due to an obligation of confidence to such other companies. As in all matters involving confidential client information, information barriers exist that restrict access to such information within the Placement Agent, except on a need to know basis.
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(iii)The Placement Agent’s research analysts and research department are independent from such Placement Agent’s investment banking division and are subject to certain regulations and internal policies. Each Placement Agent’s research analysts may hold and make statements or investment recommendations and/or publish research reports with respect to the Company, the transactions contemplated herein or any counterparty thereto that differ from or are inconsistent with the views or advice communicated by the Placement Agent’s investment banking divisions.
(y)Closing. No Closing shall take place until and unless all the conditions to the Placement Agent’s obligations set forth in Section 6(b) of this Agreement are satisfied. In the event the Offering is terminated for any reason before a Closing takes place, all funds advanced by the prospective Purchasers will be promptly returned without interest.
6.Closing Placement and Fees.
(a)Closing.
(i)All Purchasers subscribing for Shares through a Subscription Offer Form after the date of this Agreement shall be instructed to pay the purchase price for the Shares in accordance with the procedures described under “Plan of Distribution” in the Pricing Disclosure Package and the Subscription Offer Form.
(ii)All Subscription Offer Forms are to be sent to the Placement Agent, and all payment shall be sent to the Escrow Agent. The Escrow Agent will deposit such funds in an account until release of the Shares against payment therefor on the Closing Date in accordance with Section 6(a)(iii) below. To the extent that any Subscription Offer Forms and payments are sent to any Placement Agent, such Placement Agent shall immediately deliver to the Escrow Agent all such the funds received.
(iii)The closing (the “Closing”) of the Offering and the release of the Shares against payment therefor shall take place at the office of Alston & Bird LLP, 1201 West Peachtree Street, Suite 4900, Atlanta, GA, 30309 at 10:00 a.m., Eastern Time, on [_], 2026, or at such other place and time on such other date as may be agreed upon by the Company and the Placement Agent (the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. On or before the Closing Date, each Purchaser shall pay by wire transfer of immediately available funds to an account specified by the Company an amount equal to the product of (x) the number of Shares such Purchaser has agreed to purchase and (y) the purchase price per share as set forth on the cover page of the Prospectus.
(b)Conditions to Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the following conditions:
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(i)Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Placement Agent.
(ii)Representations and Warranties. The representations and warranties of the Company contained herein shall be true and correct, in all material respects, on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(iii)No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Placement Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(iv)Officers’ Certificate. The Placement Agent shall have received on and as of the Closing Date a certificate of the chief executive officer or chief financial officer of the Company and one additional executive officer of the Company who may be the chief executive officer or chief financial officer of the Company (A) confirming that such officers have carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations of the Company set forth in Sections 3(b) and 3(d) hereof are true and correct, (B) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (C) to the effect set forth in Sections 6(b) (i) and (iii) above.
(v)CFO Certificate. On the date of this Agreement and on the Closing Date, the Company shall have furnished to the Placement Agent a certificate, addressed to the Placement Agent, of its chief financial officer with respect to certain financial data contained in the Registration Statement, Pricing
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Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, substantially in the form of Exhibit A hereto.
(vi)Comfort Letters. (i) On the date of this Agreement and on the Closing Date, Forvis Mazars, LLP shall have furnished to the Placement Agent, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Placement Agent, in form and substance reasonably satisfactory to the Placement Agent, containing statements and information of the type customarily included in accountants’ “comfort letters” to Placement Agent with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that each such letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to such Closing Date.
(vii)Opinion and 10b-5 Statement of Counsel for the Company. Igler & Pearlman, P.A., counsel for the Company, shall have furnished to the Placement Agent, at the request of the Company, their written opinion and 10b-5 statement, dated as of the Closing Date, and addressed to the Placement Agent, substantially in the form of Exhibit B hereto.
(viii)No Legal Impediment to Issuance and/or Sale. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares by the Company; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares by the Company.
(ix)FINRA. FINRA shall not have raised any unresolved objection with respect to the fairness and reasonableness of the terms and arrangements relating to the issuance and sale of the Shares in the Offering.
(x)Good Standing. The Placement Agent shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdictions of organization, in each case in writing or any standard form of telecommunication from the appropriate governmental authority of such jurisdiction.
(xi)Corporation Action. The Company shall have taken all corporate action necessary in order to permit the valid execution, delivery and performance of this Agreement by the Company, including, without limitation, obtaining the approval of the Company’s board of directors for the execution and delivery of this Agreement, the performance by the Company of its obligations hereunder and thereunder and the Offering contemplated hereby.
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(xii)Additional Documents. On or prior to the Closing Date the Company shall have furnished to the Placement Agent such further certificates and documents as the Placement Agent may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Placement Agent.
(c)Placement Fees and Expenses.
(i)As compensation for the Placement Agent’s services rendered hereunder, the Company will pay the Placement Agent an aggregate placement fee (the “Placement Fee”) equal to two percent (2.0%) of the aggregate gross proceeds from Shares purchased by Purchasers solicited by the Placement Agent in the Offering, The Company agrees that any Placement Fee payable by the Company to the Placement Agent will be in cash, and will be paid out of the escrowed funds held by the Escrow Agent on the Closing Date pursuant to a joint instruction from the Company and the Placement Agent to the Escrow Agent.
(ii)In addition, whether or not a sale of the Shares occurs, the Company shall, upon request and from time to time, reimburse the Placement Agent for all reasonable and documented travel and out-of-pocket expenses and disbursements incurred in connection with this engagement, including without limitation: (i) legal fees (which includes fees and expenses of Placement Agent’s counsel in obtaining a no-objection letter from FINRA) not to exceed $50,000, and (ii) any escrow agent fees not paid directly by the Company. Such expenses may include those incurred in connection with services performed pursuant to this Agreement as well as any services which may have been performed pursuant to the Engagement Letter. The provisions of this paragraph are not intended to apply to, and shall not in any way limit or impair, the indemnification and contribution sections included in or incorporated by reference into this Agreement.
7.Termination and Survival. The respective indemnities, agreements, representations, warranties and other statements of the Company and the Placement Agent, as set forth in this Agreement (including Annex A) or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of the Placement Agent or any controlling person of any Placement Agent, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares. Notwithstanding the expiration or termination of this Agreement pursuant to Section 2(a), the Company shall remain responsible for the reimbursement of the Placement Agent’s expenses (and any unpaid Placement Fees that are owed and/or, if a closing of the Offering has occurred, that become owed as a result of any subsequent closing of the Offering) under Section 6(c) of this Agreement, and the indemnification and contribution obligations of the Company under Annex A and the provisions of this Section 7 shall survive.
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8.Indemnification. The Company hereby agrees to indemnify the Placement Agent in accordance with the indemnification provisions set forth as Annex A hereto.
9.Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
10.Miscellaneous.
(a)No Fiduciaries. Nothing in this Agreement, express or implied, is intended to confer or does confer on any person or entity other than the parties hereto or their respective successors and assigns, and to the extent expressly set forth herein, the Indemnified Persons (as defined in Annex A hereto), any rights or remedies under or by reason of this Agreement or as a result of the services rendered by the Placement Agent hereunder. The parties acknowledge and agree that the Placement Agent is not acting in a fiduciary capacity with respect to the Company and that the Placement Agent is not assuming any duties or obligations other than those expressly set forth in this Agreement and those required by applicable laws and regulations. The Company further agrees that neither the Placement Agent nor any of their controlling persons, affiliates, partners, directors, officers, employees or consultants shall have any liability to the Company, or any person asserting claims on behalf of or in right of the Company for any losses, claims, damages, liabilities or expenses arising out of or relating to this Agreement or the services rendered or to be rendered by the Placement Agent hereunder, unless it is finally judicially determined that such losses, claims, damages, liabilities or expenses resulted from the gross negligence or willful misconduct of the Placement Agent.
(b)Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto. Without limiting the foregoing, the benefits of Annex A shall also inure to the benefit of the other Indemnified Persons (as defined in Annex A hereto). The obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and permitted assigns. This Agreement may not be assigned by any of the parties without the prior written consent of all parties.
(c)Governing Law and No Trial by Jury. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to any conflict of laws principles. Any dispute arising out of or relating to this Agreement must be brought in, and take place in, the federal court sitting in the Middle District of Florida, which shall be a proper forum and which the Company and the Placement Agent agree has personal jurisdiction for purposes of enforcement of this Agreement. Any right to trial by jury in any action, proceeding, or counterclaim (whether based upon contract, tort or otherwise) in connection with any dispute arising out of this Agreement or any conduct in connection with, or matters contemplated by, this Agreement is hereby waived by the parties hereto.
(d)Notices. All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or faxed and confirmed as follows:
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| if to the Company: | BayFirst Financial Corp. 700 Central Avenue St. Petersburg, FL 33701 Attention: Scott McKim, Chief Financial Officer Telephone: (727) 440-6848 Email: scott.mckim@bayfirstfinancial.com | ||||
| with a copy to (which shall not constitute notice): | Igler & Pearlman, P.A. 3122 Mahan Drive, Suite 801-180 Tallahassee, FL 32308 Attention: Richard Pearlman, Esq. Telephone: (850) 878-2411 Email: Richard.pearlman@iglerlaw.com | ||||
| and if to the Placement Agent: | Hovde Group, LLC 1629 Colonial Parkway Inverness, IL 60067 Attention: Michael Hedrei Telephone: (833) 587-4159 Email: prospectus@hovdegroup.com | ||||
| with a copy to (which shall not constitute notice): | Alston & Bird LLP 2200 Ross Ave #2300 Dallas, TX 75201 Attention: Mark Kanaly, Esq. Telephone: (214) 922-3404 Email: mark.kanaly@alston.com | ||||
(e)Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.
(f)Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile, email or other electronic delivery of a signature), each of which shall be deemed to be an original and all of which together shall be deemed to be the same agreement.
(g)Independent Contractor. The Placement Agent shall act as an independent contractor and nothing contained herein or otherwise shall be construed to create any partnership or joint venture between the Placement Agent and the Company.
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(h)Headings. The headings and captions of the various subdivisions of this Agreement are for convenience or reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
(i)Entire Agreement; Engagement Letter. This Agreement (including the schedules and exhibits hereto), together with the Engagement Letter, constitutes the entire understanding and agreement between the Company and the Placement Agent with respect to the subject matter hereof and supersedes all prior understandings or agreements between the parties with respect thereto, whether oral or written, express or implied. This Agreement, rather than the Engagement Letter, shall govern the compensation payable to the Placement Agent in respect of the Offering, but the Engagement Letter shall otherwise remain in full force and effect.
(j)Amendments. Neither this Agreement nor any term hereof may be changed, waived or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver or termination is sought.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, BAYFIRST FINANCIAL CORP. By: [_] [_] | |||||
Accepted: As of the date first written above | |||||
HOVDE GROUP, LLC By: Name: Michael Hedrei Title: Managing Principal, Head of Capital Markets | |||||
[Signature Page to Placement Agency Agreement]
Annex A
(a) Indemnification of the Placement Agent by the Company. The Company agrees to indemnify and hold harmless the Placement Agent and its affiliates, selling agents, officers, directors and partners and each person, if any, who controls the Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense (including, without limitation, any reasonable legal or other expenses incurred in connection with defending or investigating any such action or claim), as incurred, arising out of, or based upon, any untrue statement or alleged untrue statement of a material fact contained in the Transaction Documents, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of, or based upon, any untrue statement or alleged untrue statement of a material fact included in any of the Transaction Documents, or the omission or alleged omission in any of the Transaction Documents of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that (subject to Section (c) hereof) any such settlement is effected with the written consent of the Company, not to be unreasonably withheld; and (iii) against any and all expense, as incurred (including the reasonable fees and disbursements of counsel chosen by the Placement Agent, as approved by the Company in its reasonable discretion), reasonably incurred in investigating, preparing or defending against, or appearing as a witness or providing information or documents in connection with any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above.
(b) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this Agreement. In the case of parties indemnified pursuant to this Annex A counsel to the indemnified parties shall be selected by the Placement Agent, as approved by the Company in its reasonable discretion. An indemnifying party may participate in such action and retain its own counsel at its own expense in the defense of any such action; provided, that counsel to the indemnifying party shall not (except with the prior written consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general or related allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Annex A (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(c) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for legal fees and expenses of counsel, as permitted pursuant to this Annex A, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section (a) of this Annex A effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 60 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request and this Annex A, prior to the date of such settlement.
Schedule 1
a.Pricing Disclosure Package
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b.Pricing Information Provided Orally by Placement
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Schedule 3(xx)
Exhibit A
Form of CFO Certificate
Exhibit B
Form of Legal Opinion and 10b-5 Letter
IGLER AND PEARLMAN, P.A.
April 30, 2026
Board of Directors
BayFirst Financial Corp.
700 Central Avenue
St Petersburg, Florida 33701
Re: Registration Statement on Form S-1
Members of the Board:
We have acted as counsel to BayFirst Financial Corp., a Florida corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of 4,108,072 shares of common stock, no par value, (the “Shares”), pursuant to a registration statement on Form S-1 (Registration No. 333-____________) (the “Registration Statement”) filed with the U.S. Securities and Exchange Commission on April 30, 2026.
For purposes of providing the opinions contained herein, we have reviewed the Registration Statement and the corporate proceedings of the Company with respect to the authorization of the issuance of the Shares. We have also examined originals or copies of such documents, corporate records, certificates of public officials, and other instruments and have conducted such other investigations of law and fact as we have deemed necessary or advisable for purposes of our opinion. In our examination, we have assumed, without verification, the genuineness of all signatures, the authenticity of all documents and instruments submitted to us as originals, and the conformity to the originals of all documents and instruments submitted to us as certified or conformed copies.
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
Based on and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, it is our opinion that: (i) the Shares have been validly issued, are fully paid, and are nonassessable; and (ii) when the Company receives payment for the Shares in accordance with the terms of the offering, the Shares will be validly issued, fully paid, and nonassessable.
The opinions which we render herein are limited to those matters governed by the laws of the State of Florida, including all Florida statutes and all Florida court decisions that affect the interpretation of such laws, in each case as of the date hereof. Our opinions expressed herein are as of the date hereof, and we assume no obligation to revise or supplement the opinions rendered herein should such laws be changed by legislative or regulatory action, judicial decision, or otherwise. We express no opinion as to compliance with the “blue sky” laws of any jurisdiction and the opinions set forth herein are qualified in that respect.
This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted, or otherwise relied on for any other purpose without our express written consent. No opinion may be implied or inferred beyond the opinion expressly stated in the numbered clauses above.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the references to us under the heading “Legal Matters” in the prospectus forming part of the Registration Statement, as such may be amended or supplemented. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations promulgated thereunder.
Sincerely,
/s/ Igler and Pearlman, P.A.
Igler and Pearlman, P.A.
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S‑1 of BayFirst Financial Corp. of our report dated March 27, 2026, with respect to the consolidated financial statements, included in BayFirst Financial Corp.’s Annual Report on Form 10-K for the year ended December 31, 2025. We also consent to the reference to our firm under the caption “Experts” in this Registration Statement.
/s/ Forvis Mazars, LLP
Tampa, Florida
April 30, 2026