COMMON STOCK PURCHASE AGREEMENT
THIS
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”) is dated as of January 6,
2009, between Pacific Continental Corporation, an Oregon corporation (the
“Company”), on the one hand, and the Purchaser(s) named on the signature page
hereto (the “Purchaser”), on the other hand. The Company and the
Purchaser may hereinafter be referred to collectively as the “Parties” or
individually as a “Party.” Except as otherwise indicated herein,
capitalized terms used herein shall have the meaning as defined in Exhibit A
attached hereto.
PRELIMINARY
STATEMENTS
A. The
Company understands that the Purchaser desires to make an equity investment in
the Company.
B. The
Company and the Purchaser desire to enter into an agreement pursuant to which
the Purchaser will purchase from the Company, and the Company will sell to the
Purchaser, the restricted shares of common stock described below.
NOW,
THEREFORE, in consideration of the mutual promises and covenants being made in
this Agreement, and for other good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
STATEMENT OF
AGREEMENT
ARTICLE
I
ISSUANCE AND PURCHASE OF
COMMON STOCK
1.1 Issuance and Purchase of
Common Stock. Subject to the terms and conditions of this
Agreement, the Company will sell to the Purchaser, and the Purchaser will
purchase from the Company, the number of shares (the “Shares”)
of the Company’s common stock (the Common
Stock”) set forth on Schedule 1.1 to this
Agreement at a price per share of $13.50 (the “Purchase
Price”). The Company will issue no more than 750,000 Shares pursuant to
this Agreement and similar Agreements with other purchasers in this private
offering (“Other Purchasers”) under a term sheet (“Term Sheet”) set forth in the
private offering disclosure document dated January 2, 2009, relating to the
private offering of the Company’s Common Stock.
1.2 Settlement. (a)
Until such time as aggregate gross proceeds received by the Company from the
Purchaser and the Other Purchasers are at least$10,125,000, such proceeds shall
be deposited in a segregated non-interest bearing account at the Company’s
subsidiary, Pacific Continental Bank. Settlement of the transactions
contemplated in this Agreement (the “Settlement”)
will occur only on or after the date that the aggregate gross proceeds received
by the Company from the Purchaser and the Other Purchasers totals $10,125,000,
take place at the offices of Xxxxxx & Xxxx, PC, Pier 70, 0000 Xxxxxxx Xxx,
Xxxxxxx, XX 00000 at such time and on such date as the Parties may mutually
agree, but in no event later than January 7, 2009 (the “Settlement
Date”). At the Settlement, the Company will issue to Purchaser
the Shares and deliver to Purchaser certificates for the shares of Common Stock
duly registered in the name of Purchaser and the Company shall deliver a legal
opinion from the Company’s counsel, Xxxxxx & Xxxx PC, in form and substance
satisfactory to Xxxxxxxxxx Securities, Inc., and expressing the opinions
identified on Schedule
1.2(c) hereto. If on the Settlement Date the Company shall not
have received aggregate gross proceeds from the Purchaser and the Other
Purchasers as contemplated herein, the offering will terminate and subscription
funds shall be promptly returned to the Purchaser, without interest or
deduction.
ARTICLE
II
RESTRICTIONS ON
TRANSFERABILITY
The
Shares shall not be transferred before satisfaction of the conditions specified
in this Article II, which conditions are intended to ensure compliance with the
provisions of the Securities Act and applicable state securities laws with
respect to the transfer of any Shares. Purchaser, by entering into
this Agreement and accepting the Shares, agree to be bound by the provisions of
this Article II.
2.1 Restrictive
Legend. Except as otherwise provided in this Article II, each
certificate representing shares of Common Stock shall be stamped or otherwise
imprinted with a legend in substantially the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED, UNLESS A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT IS IN EFFECT AT THE TIME OF SALE
OR THE HOLDER SUBMITS AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE SECURITIES LAWS, OR ANY RULE OR REGULATION PROMULGATED THEREUNDER, IS
AVAILABLE. SUCH SECURITIES ARE SUBJECT TO THE RESTRICTIONS AND
PRIVILEGES SPECIFIED IN THE COMMON STOCK PURCHASE AGREEMENT, DATED AS
OF JANUARY 6, 2009, BETWEEN PACIFIC CONTINENTAL CORPORATION AND THE PURCHASER, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF PACIFIC CONTINENTAL CORPORATION
AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER HEREOF UPON WRITTEN
REQUEST. THE HOLDER OF THIS CERTIFICATE AGREES TO BE BOUND BY THE
TERMS AND CONDITIONS OF SUCH COMMON STOCK PURCHASE AGREEMENT.”
2.2 Transfers. The
Purchaser agrees that it will not sell, transfer or otherwise dispose of any
shares of restricted Common Stock, in whole or in part, except pursuant to an
effective registration statement under the Securities Act, or unless the
Purchaser submits an opinion of counsel reasonably satisfactory to the Company
and its counsel that an exemption from registration exists
thereunder. Each certificate, if any, evidencing such shares of
restricted Common Stock issued upon such transfer shall bear the restrictive
legend set forth in Section 2.1, unless in the written opinion of the
transferee’s or Purchaser’s counsel delivered to the Company in connection with
such transfer (which opinion shall be reasonably satisfactory to the Company)
such legend is not required in order to ensure compliance with the Securities
Act.
2.3 Termination of
Restrictions. The restrictions imposed by this Article II upon
the transferability of the restricted Common Stock and the legend requirement of
Section 2.1 shall terminate as to any particular share (i) when and so long as
such security shall have been registered under the Securities Act and disposed
of pursuant thereto, or (ii) when the Purchaser thereof shall have delivered to
the Company the written opinion of counsel to such Purchaser, which opinion
shall be reasonably satisfactory to the Company, stating that such legend is not
required in order to ensure compliance with the Securities
Act. Whenever the restrictions imposed by this Article II shall
terminate as to any restricted Common Stock, as herein above provided, the
Purchaser thereof shall be entitled to receive from the Company, at the expense
of the Company, a new certificate representing such Common Stock, not bearing
the restrictive legend set forth in Section 2.1.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
As a
material inducement to the Purchaser entering into this Agreement and purchasing
the Shares, the Company represents and warrants to the Purchaser, which
representation and warranty shall be true and correct as of the date signed by
the Purchaser and as of the date of the Settlement, as
follows:
3.1 Corporate
Status. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Oregon. The Company has all requisite corporate power and authority
to own or lease, as the case may be, its properties and to carry on its business
as now conducted. The Company and its Subsidiaries are qualified or
licensed to conduct business in all jurisdictions where its or their ownership
or lease of property and the conduct of its or their business requires such
qualification or licensing, except to the extent that failure to so qualify or
be licensed would not have a Material Adverse Effect on the
Company. There is no pending, or to the knowledge of the Company
threatened, proceeding for the dissolution or liquidation or involving the
insolvency of the Company or any of its Subsidiaries.
3.2 Corporate Power and
Authority. The Company has the corporate power and authority
to execute and deliver this Agreement and the Shares, to perform its obligations
hereunder and thereunder and consummate the transactions contemplated hereby and
thereby. The Company has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement, the
registration rights agreement of even date herewith between the Company and the
Purchaser relating to the registration of the Shares,(the “Registration Rights
Agreement”), the Shares and the transactions contemplated hereby and
thereby.
3.3 Enforceability. This
Agreement has been duly executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and general equitable
principles regardless of whether such enforceability is considered in a
proceeding at law or in equity.
3.4 Non-Contravention and No
Violation. The Company is not in violation of or default
under, nor will the execution and delivery by the Company of this
Agreement, the consummation of the transactions contemplated hereby and thereby,
and the compliance by the Company with the terms and provisions hereof and
thereof, (a) result in a violation or breach of, or constitute, with
the giving of notice or lapse of time, or both, a material default (or give rise
to any right of termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any Contract to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
or any material portion of the Company’s or its Subsidiaries’ properties or
assets may be bound, (b) violate any Requirement of Law applicable to the
Company or any of its Subsidiaries or any material portion of the Company’s
properties or assets, or (c) result in the imposition of any Lien upon any of
the properties or assets of the Company or any of its Subsidiaries, or conflict
with the Company’s Articles of Incorporation or Bylaws or under any
indenture, mortgage Contract or instrument to which the Company is a party,
except where any of the foregoing would not have a Material Adverse Effect on
the Company.
3.5 Consents/Approvals. No
consent, approval, waiver or other action by any Person under any Contract to
which either the Company or any of its Subsidiaries is a party, or by which any
of their respective properties or assets are bound, is required or necessary for
the execution, delivery or performance by the Company of this
Agreement and the consummation of the transactions contemplated
hereby, except where the failure to obtain such consents, filings,
authorizations, approvals or waivers or make such filings would not have a
Material Adverse Effect on the Company.
3.6 Capitalization. The
authorized capital stock of the Company consists of 250,000,000 shares of Common
Stock and 20,000 shares of Preferred Stock. As of December 1, 2008,
the Company had outstanding 12,074,182 shares of Common Stock, all of which were
duly authorized, validly issued, fully paid and non-assessable and had no
outstanding shares of Preferred Stock. Except (a) as contemplated by
this Agreement, (b) options to acquire 630,888 shares (not including
171,856 options reserved for future issuance but not yet granted) shares of
Common Stock under the Company’s option plans and equity incentive plans, and
(c) an estimated 130,000 shares that may be issued pursuant to the settlement of
outstanding stock appreciation rights that may be settled in shares of common
stock, there are (x) no rights, options, warrants, convertible securities,
subscription rights or other agreements, calls, plans, contracts or commitments
of any kind relating to the issued and unissued capital stock of, or other
equity interest in, the Company outstanding or authorized, (y) the consummation
of the transactions consummated by this Agreement will not cause any
anti-dilution adjustments to be made to any of the Company’s outstanding
securities and (z) no contractual obligations of the Company to repurchase,
redeem or otherwise acquire any shares of the Company Common
Stock. Upon delivery to the Purchaser of the certificates
representing the shares of Common Stock and payment of the Purchase Price, the
Purchaser will acquire good, valid and marketable title, subject to the
limitations on marketability contained in this Agreement or imposed pursuant to
the Securities Act, to and beneficial and record ownership of the Shares, and
the shares of Common Stock will be validly issued, fully paid and
non-assessable. Within the last three years, all prior sales of
securities of the Company were either registered under the Securities Act and
applicable state law or were exempt from registration.
3.7 SEC Reports and Nasdaq
Eligibility. Since January 1, 2006, the Company has made all
filings (the “SEC
Reports”) required to be made by it under the Securities
Act and the Securities Exchange Act of 1934, (the “Exchange
Act”). The SEC Reports, when filed, complied in all material
respects with all applicable requirements of the Securities Act and the Exchange
Act and the securities laws, rules and regulations of any state and pursuant to
any Requirements of Law. To the best of the Company’s knowledge the
SEC Reports, when filed, did not contain an 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 made therein, in light of the circumstances under
which they were made, not misleading. The Company has made accessible
to Purchaser true, accurate and complete copies of the SEC Reports which were
filed with the SEC since January 1, 2006. The Company’s Common Stock is
currently eligible for trading on the Nasdaq Global Select Market.
3.8 Financial
Statements. Each of the balance sheets included in the SEC
Reports (including any related notes and schedules) fairly presents in all
material respects the consolidated financial position of the Company and its
Subsidiaries as of its date, and each of the other financial statements included
in the SEC Reports (including any related notes and schedules) fairly presents
in all material respects the consolidated results of operations or other
information therein of the Company and its Subsidiaries for the periods or as of
the dates therein set forth in accordance with GAAP consistently
applied and, where applicable, the rules of the SEC and the Public
Company Accounting Oversight Board, during the periods involved (except that the
interim reports are subject to normal recording adjustments which might be
required as a result of year-end audit and except as otherwise stated
therein).
3.9 Xxxxxxxx-Xxxxx; Internal
Accounting Controls. The Company is in material compliance
with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it
as of the date of this Agreement. The Company and the Subsidiaries
taken as a whole maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP 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. The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
Company and designed such disclosure controls and procedures to ensure that
information required to be disclosed by the Company in the reports 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. The Company’s certifying officers have evaluated the
effectiveness of the Company’s disclosure controls and procedures as of the end
of the period covered by the Company’s most recently filed periodic report under
the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed
periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the Company’s internal control over
financial reporting (as such term is defined in the Exchange Act) that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
3.10 Undisclosed
Liabilities. As of September 30, 2008, except for liabilities and losses
incurred in the ordinary course of business since that date, the Company and its
Subsidiaries did not have any material direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, fixed or unfixed, xxxxxx or inchoate, liquidated or
unliquidated, secured or unsecured, subordinated or unsubordinated, matured or
unmatured, accrued, absolute, contingent, regulatory or administrative charges
or lawsuits brought, whether or not of a kind required by GAAP to be set forth
on a financial statement, that were not fully and adequately reflected or
reserved for in the financial statements contained in the Company’s Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2008, or
otherwise disclosed in the SEC Reports. The Company is not the subject of any
inquiry, investigation or similar matter being conducted by the SEC, any state
securities regulator, the Nasdaq Stock Market, or other government
body.
3.11 Material
Changes. Except as set forth in the SEC Reports, since
September 30, 2008, there has been no Material Adverse Change in or
which may be reasonably expected to affect the Company. In addition,
the description of the Company’s business contained in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2007 is not
materially inconsistent with its current operations. Except as set
forth in the SEC Reports, since September 30, 2008, there has not been
(i) any direct or indirect redemption, purchase or other acquisition by the
Company of any shares of the Common Stock or (ii) declaration, setting
aside or payment of any dividend or other distribution by the Company with
respect of the Common Stock.
3.12 Litigation. Except
as set forth in the SEC Reports, neither the Company nor any of its Subsidiaries
has received any notice of any outstanding judgments, rulings, orders, writs,
injunctions, awards or decrees of any court, government or other authority
against the Company or its Subsidiaries which could have, or is
a party to any litigation or similar proceeding including an
arbitration proceeding which could have, if decided adversely to their
interests, a Material Adverse Effect on the Company. The Company has not
received notice of (i) any customer or other complaint threatening any
litigation or other such proceeding or (ii) any investigation, inquiry or
similar proceeding from any governmental authority or agency.
3.13 Investment
Company. The Company is not and after giving effect to the
sale of the Shares will not be an “investment company” or an entity “controlled”
by an “investment company” as such terms are defined in the Investment Company
Act of 1940, as amended.
3.14 No
Commissions. Except for fees payable to Xxxxxxxxxx Securities,
Inc., the Company has not incurred any obligation for any finder’s or broker’s
or agent’s fees or commissions in connection with the purchase of the
Shares.
3.15 Title. Except
as set forth on Schedule 3.15 hereto,
the Company has good and marketable title to all properties and assets, owned by
it, free and clear of all Liens, charges, encumbrances or restrictions, except
such as are not materially significant or important in relation to the Company’s
business; all of the material leases and subleases under which the Company is
the lessor or sublessor of properties or assets or under which the Company hold
properties or assets as lessee or sublessee are in full force and effect, and
the Company is not in default in any material respect with respect to any of the
terms or provisions of any of such leases or subleases, and no material claim
has been asserted by anyone adverse to rights of the Company as lessor,
sublessor, lessee or sublessee under any of the leases or subleases mentioned
above, or affecting or questioning the right of the Company to continued
possession of the leased or subleased premises or assets under any such lease or
sublease. The Company owns or leases all such properties as are
necessary to its operations as now conducted and to be conducted, as presently
planned.
3.16 Compliance With Laws,
Licenses, Etc. The Company has not received notice of any
violation of or noncompliance with any federal, state, local or foreign, laws,
ordinances, regulations and orders applicable to its business which has not been
cured, the violation of, or noncompliance with which, would have a Material
Adverse Effect on the business or operations of the Company. The
Company has all licenses and permits and other governmental certificates,
authorizations and permits and approvals (collectively “Licenses”) required by
every federal, state and local government or regulatory body for the operation
of its business as currently conducted and the use of its properties, except
where the failure to be licensed would not have a Material Adverse Effect on the
business of the Company. The Licenses are in full force and effect
and no violations are or have been recorded in respect of any License and no
proceeding is pending or threatened to revoke or limit any thereof.
3.17 Exemption From
Registration. Based upon the representations and warranties of
each of the Purchaser and each Other Purchaser, the sale of the Shares is exempt
from the registration requirements of the Securities Act.
3.18 Eligibility to Use Form
S-3. The Company is eligible to use Form S-3 and intends to
use such form for the public sale by the Purchaser of the shares of Common Stock
under the Registration Rights Agreement.
3.19 Stock
Options. With regard to the Company’s practices in connection
with the granting of stock options, it has: (i) granted all stock
options at or above the fair market value as determined by its relevant stock
option or equity incentive plan, (ii) utilized the date of (or a date after) any
applicable meeting of its board of directors or committee of its board of
directors for the purposes of determining fair market value of stock options it
has granted, (iii) the Company has not granted any stock options to its officers
and directors at a time while the Company was in possession of any material,
non-public information, and (iv) the Company is not aware of any inquiry or
investigation which has been initiated or is being considered with respect to
its stock option practices, whether by its registered independent public
accounting firm, independent counsel or other party.
3.20 Regulatory
Compliance. The Company and its subsidiary Pacific Continental
Bank (the “Bank”) are in full compliance in all material respects with all
applicable laws administered by and regulations of the Board of Governors of the
Federal Reserve System and the Federal Deposit Insurance Corporation (“FDIC”)
and the Oregon Division of Finance and Corporate Securities, as the case may be
(the “Bank Regulatory Authorities”), the failure to comply with would have a
Material Adverse Effect upon the assets or properties, business prospects,
results of operations or financial condition of the Company and the Bank, taken
as a whole. Other than the Bank Regulatory Authorities, neither the
Company nor the Bank is subject to regulation in its capacity as a bank holding
company or a bank, respectively, by any other governmental
authority. Neither the Company nor the Bank is a party to any written
agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from any Bank Regulatory
Authority, specifically directed at the Company or the Bank, that restricts the
conduct of its business, or in any manner relates to its capital adequacy, its
credit polices or its management, nor have the Company or the Bank been advised
in writing 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, specifically
directed at the Company or the Bank. The Company and the Bank, and
their respective operations, comply in all material respects with all applicable
laws and regulations, including without limitation those relating to the
practice of banking, except where non-compliance, singly or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES OF PURCHASER
As a
material inducement to the Company entering into this Agreement and issuing
and/or selling the Shares, each Purchaser represents and warrants to the Company
as follows:
4.1 Investment
Intent. The Purchaser is acquiring the Shares hereunder for
the Purchaser’s own account and with no present intention of distributing or
selling the Shares or any interest in the Shares. The Purchaser agrees that it
will not sell or otherwise dispose of any of the Shares or any
interest in the Shares unless such sale or other disposition has been
registered or qualified (as applicable) under the Securities Act and applicable
state securities laws or, in the opinion of the Purchaser’s counsel delivered to
the Company (which opinion shall be reasonably satisfactory to the Company) such
sale or other disposition is exempt from registration or qualification under the
Securities Act and applicable state securities laws. The Purchaser
understands that the sale of the Shares acquired by the Purchaser hereunder has
not been registered under the Securities Act, but the Shares are issued through
transactions exempt from the registration requirements of, among other things,
Section 4(2) of the Securities Act and Rule 506 thereunder, and that the
reliance of the Company on such exemption from registration is predicated in
part on these representations and warranties of the Purchaser. The
Purchaser acknowledges that pursuant to Section 2.1 a restrictive legend
consistent with the foregoing has been or will be placed on the certificates
representing the shares of Common Stock until such legend is permitted to be
removed under applicable law. The Purchaser will have no right to require
registration of the shares of Common Stock, and the Company is under no
obligation to cause an exemption for resale to be available or register the
shares of Common Stock, except as provided in the Registration Rights
Agreement.
4.2 Adequate
Information. The Company has made available and the Purchaser
has reviewed such information that the Purchaser considers necessary or
appropriate to evaluate the risks and merits of an investment in the Shares
including, without limitation, the Company’s Form 10-K for the fiscal year ended
December 31, 2007, Form 10-Qs for the quarterly periods ended March
31, 2008, June 30, 2008, and September 30, 2008, Proxy Statement filed with the
SEC on March 14, 2008 and Current Reports on Form 8-K filed with the SEC since
December 31, 2007.
4.3 Opportunity to Ask
Questions. The Purchaser has had the opportunity to question,
and, to the extent deemed necessary or appropriate, has questioned
representatives of the Company so as to receive answers and verify information
obtained in the Purchaser’s examination of the Company, including the
information that the Purchaser has reviewed in relation to its investment in the
Shares.
4.4 No Other
Representations. No oral or written representations have been made to the
Purchaser in connection with the Purchaser’s acquisition of the Shares which
were in any way inconsistent with the information reviewed by the Purchaser. The
Purchaser acknowledges that no representations or warranties of any type or
description have been made to it by any Person with regard to the Company, any
of its Subsidiaries, any of their respective businesses, properties or
prospectus or the investment contemplated herein, other than the representations
and warranties set forth in Article III hereof. The Purchaser has not
made its decision to acquire Shares or to execute and deliver this Agreement on
the basis of any belief that any officer, director or affiliate of the Company
or any current stockholder of the Company would make an investment in the
Company now or in the future.
4.5 Knowledge and
Experience. The Purchaser is an “accredited investor” as such
term is defined in Rule 501(a) of Regulation D promulgated by the SEC under the
Securities Act. The Purchaser has such knowledge and experience in
financial, tax and business matters, including substantial experience in
evaluating and investing in common stock and other securities (including the
Common Stock and other securities of new and speculative companies), so as to
enable the Purchaser to utilize the information made available to the Purchaser
in order to evaluate the merits and risks of an investment in the Shares and to
make an informed investment decision with respect thereto.
4.6 Additional
Representations. The
Purchaser will make such additional representations and warranties and furnish
such information regarding the Purchaser’s investment experience and financial
position as the Company may reasonably require, and if there should be any
material change in the information set forth herein prior to the closing of the
sale of the Shares, the Purchaser will immediately furnish such revised or
corrected information to the Company.
4.7 Term
Sheet. The Purchaser has received a copy of the Term Sheet and
any and all amendments, supplements and Appendices thereto. Except
for the information contained in the Term Sheet, as amended or
supplemented and except for the information that the Purchaser or its
advisors, if any, have requested and been furnished in writing, neither the
Purchaser nor its advisors has been furnished any offering material or
literature by the Company or Xxxxxxxxxx Securities, Inc.
4.8 Independent
Decision. The Purchaser is not relying on the Company,
Xxxxxxxxxx Securities, Inc. or on any legal or other opinion in the materials
reviewed by the Purchaser with respect to the financial or tax considerations of
the Purchaser relating to its investment in the Shares. The Purchaser
has relied solely on the representations, warranties, covenants and agreements
of the Company in this Agreement (including the Exhibits and Schedules hereto)
and on its examination and independent investigation in making its decision to
acquire the Shares. The Purchaser has been afforded the opportunity
to obtain, and has been furnished, all material that it has requested relating
to the proposed operation of the Company, any other matters relating to the
business and properties of the Company and the offer and sale of the
Shares.
4.9 Legal Existence and
Authority. If the Purchaser is a corporation, partnership,
limited liability company, trust or other entity, the Purchaser has been duly
formed and is validly existing and in good standing under the laws of the
jurisdiction of its formation with full power and authority to acquire and hold
the Shares and to execute, deliver and comply with the terms of this
Agreement and such other documents required to be executed and delivered by the
undersigned in connection with this subscription.
4.10. No Defaults or
Conflicts. The execution and delivery of this Agreement by the
Purchaser and the performance of its obligations hereunder does not conflict
with or constitute a default under any instruments governing the Purchaser, or
any law, regulation, order or agreement to which the Purchaser is a party or to
which the undersigned is bound.
4.12. Validity; Enforceability;
Binding Effect. This Agreement
and the Registration Rights
Agreement delivered herewith have been duly and validly authorized, executed and
delivered by the Purchaser, and the agreements herein and therein constitute
valid, binding and enforceable agreements of the Purchaser. The
Purchaser is not a partnership, common trust fund, special trust, pension fund,
retirement plan or other entity in which the partners or participants, as the
case may be, may designate the particular investments to be made or the
allocation thereof.
4.13. Confidentiality. Unless
required by law, the Purchaser shall not disclose, and shall maintain
confidential any non-public information related to the
Company, provided that the undersigned may disclose such information
to any of its advisors, attorneys and accountants, if such advisor, attorney
and/or accountant shall have agreed to be bound by this provision.
4.14 Residence; No General
Solicitation. The Purchaser is a resident of the state(s)or
other jurisdiction(s) indicated on the signature page hereto. The Purchaser is not
aware of any general solicitation or advertising relating to the offer or sale
of the Shares.
4.15 Non-Disclosure. Purchaser
acknowledges that certain information contained in the disclosure document
provided to Purchaser in connection with the private offering of the Common
Stock has not been otherwise publicly disclosed. Accordingly,
Purchaser agrees to keep such information confidential for a period ending on
the earlier to occur of (i) the first anniversary of the Settlement Date, or
(ii) the date upon which such information is publicly disclosed by the
Company.
ARTICLE
V
COVENANTS
5.1 Filings. Each
of the Company and the Purchaser shall make on a prompt and timely basis all
governmental or regulatory notifications and filings required to be made by it
for the consummation of the transactions contemplated hereby.
5.2 Further
Assurances. Each of the Company and the Purchaser shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of the terms of this Agreement and the
transactions contemplated hereby.
5.3 Cooperation. Each
of the Company and the Purchaser agree to cooperate with the other in the
preparation and filing of all forms, notifications, reports and information, if
any, required or reasonably deemed advisable pursuant to any Requirement of Law
in connection with the transactions contemplated by this Agreement and to use
their respective best efforts to agree jointly on a method to overcome any
objections by any Governmental Authority to any such transactions; provided
that, any reasonable, out-of-pocket expenses incurred by the Purchaser related
to any such objections shall be reimbursed by the Company. Except as
may be specifically required hereunder, none of the Parties or their respective
Affiliates shall be required to agree to take any action that in the reasonable
opinion of such Party would result in or produce a Material Adverse Effect on
such Party.
5.4 Notification of Certain
Matters. Each of the Company and the Purchaser shall give prompt notice
to the other of the occurrence, or non-occurrence, of any event which would be
likely to cause any representation or warranty herein to be untrue or
inaccurate, or any covenant, condition or agreement herein not to be complied
with or satisfied.
ARTICLE
VI
INDEMNIFICATION
6.1 Indemnification
Generally. The Company, on the one hand, and the Purchaser, on
the other hand, shall indemnify the other from and against any and all losses,
damages, liabilities, claims, charges, actions, proceedings, demands, judgments,
settlement costs and expenses of any nature whatsoever (including, without
limitation, attorneys’ fees and expenses) or deficiencies resulting from any
breach of a representation, warranty or covenant by the Indemnifying Party
(including indemnification by the Company of the Purchaser for any failure by
the Company to deliver, or for any failure by the Purchaser to receive, stock
certificates representing the Shares on the Settlement Date) and all claims,
charges, actions or proceedings incident to or arising out of the foregoing
(“Losses”). Notwithstanding
the foregoing, (i) the Indemnifying Party shall not be liable for any Losses to
the extent such Losses arise out of, result from, or are increased by, the
breach of this Agreement by, or the fraudulent acts, negligence or willful
misconduct of, the Indemnified Party, and (ii) the Indemnifying Party shall not
be liable to an Indemnifying Party for any Losses in excess of the aggregate
amount of the Purchase Price paid for the Shares purchased by such Indemnified
Party.
6.2 Indemnification
Procedures. Each Person entitled to indemnification under this
Article VI (an “Indemnified
Party”) shall give notice as promptly as reasonably practicable to each
party required to provide indemnification under this Article VI (an “Indemnifying
Party”) of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing in respect of which indemnity
may be sought hereunder; provided, however, failure to so notify an Indemnifying
Party shall not relieve such Indemnifying Party from any liability that it may
have otherwise than on account of this indemnity agreement so long as such
failure shall not have materially prejudiced the position of the Indemnifying
Party. Upon such notification, the Indemnifying Party shall assume
the defense of such action if it is a claim brought by a third party, and after
such assumption the Indemnified Party shall not be entitled to reimbursement of
any expenses incurred by it in connection with such action except as described
below. In any such action, any Indemnified Party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the contrary or (ii) the named
parties in any such action (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
or conflicting interests between them. An Indemnifying Party who is
not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel in any one
action for all parties indemnified by such Indemnifying Party with
respect to such claim except for local counsel if the attorneys selected by the
Indemnified Party do not maintain an office within the jurisdiction of the
court, unless in the reasonable judgment of any Indemnified Party a conflict of
interest may exist between such Indemnified Party and any other of such
Indemnified Parties with respect to such claim, in which event the Indemnifying
Party shall be obligated to pay the fees and expenses of such additional counsel
or counsels. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent (which shall
not be unreasonably withheld or delayed by such Indemnifying Party), but if
settled with such consent or if there be final judgment for the plaintiff, the
Indemnifying Party shall indemnify the Indemnified Party from and against any
loss, damage or liability by reason of such settlement or
judgment. In the event that any indemnifying party enters into any
settlement without the written consent of the indemnified party the indemnifying
party shall not consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff of a release of such indemnified party from all liability
in respect of such claim or litigation.
ARTICLE
VII
MISCELLANEOUS
7.1 Notices. All
notices, requests, demands, claims, and other communications hereunder shall be
in writing and shall be delivered by certified or registered mail (first class
postage pre-paid), guaranteed overnight delivery, or facsimile transmission if
such transmission is confirmed by delivery by certified or registered mail
(first class postage pre-paid) or guaranteed overnight delivery, to the
following addresses and telecopy numbers (or to such other addresses or telecopy
numbers which such Party shall designate in writing to the other
Party):
(a) if
to the Company to:
Pacific Continental
Corporation
000 Xxxx 0xx
Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx X.
Xxxxx
Chief Executive Officer
with a
copy to:
Xxxxxx & Xxxx PC
Pier 70,
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Kumi X.
Xxxxxxx
(b) if
to a Purchaser:
At the address indicated on the
signature page hereof
and
to:
Xxxxxxxxxx
Securities, Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: J.
Xxxxxx Xxxxx
Facsimile: (000)
000-0000
7.2 Loss or
Mutilation. Upon receipt by the Company from any Purchaser of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of a certificate representing shares of Common Stock
and indemnity reasonably satisfactory to it (it being understood that the
written agreement of the Purchaser or an Affiliate thereof shall be sufficient
indemnity) and in case of mutilation upon surrender and cancellation hereof or
thereof, the Company will execute and deliver in lieu hereof or thereof a new
stock certificate of like tenor to such Purchaser; provided, in the case of
mutilation, no indemnity shall be required if the certificate representing
shares of Common Stock in identifiable form is surrendered to the Company for
cancellation.
7.3 Survival. Each
representation, warranty, covenant and agreement of the parties set forth in
this Agreement is independent of each other representation, warranty, covenant
and agreement. Each representation and warranty made by any Party in
this Agreement shall survive the Settlement through the period ending on the
date three years from the respective Purchaser’s Settlement Date from the date
of this Agreement.
7.4 Remedies.
(a) Each
Party acknowledges that the other Party would not have an adequate remedy at law
for money damages in the event that any of the covenants or agreements of such
Party in this Agreement was not performed in accordance with its terms, and it
is therefore agreed that each Party in addition to and without limiting any
other remedy or right such Party may have, shall have the right to an injunction
or other equitable relief in any court of competent jurisdiction, enjoining any
such breach and enforcing specifically the terms and provisions
hereof.
(b) All
rights, powers and remedies under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not alternative, and
the exercise or beginning of the exercise of any thereof by any Party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such Party.
7.5 Entire
Agreement. This Agreement (including the exhibits, appendices
and schedules attached hereto), the Registration Rights Agreement and the other
documents delivered at the Settlement pursuant hereto, contain the entire
understanding of the Parties in respect of the subject matter hereof and
supersede all prior agreements and understandings between or among the Parties
with respect to such subject matter. The exhibits and schedules
hereto constitute a part hereof as though set forth in full above. In
the event of any ambiguity or inconsistency between this Agreement and the
Registration Rights Agreement, the Registration Rights Agreement shall govern
and supercede.
7.6 Expenses;
Taxes. Except as otherwise provided in this Agreement, the
Parties shall pay their own fees and expenses, including their own counsel fees,
incurred in connection with this Agreement or any transaction contemplated
hereby. Further, except as otherwise provided in this Agreement, any
sales tax, stamp duty, deed transfer or other tax (except taxes based on the
income of the Purchaser) arising out of the sale of the Shares by the Company to
the Purchaser and consummation of the transactions contemplated by this
Agreement shall be paid by the Company.
7.7 Amendment. This
Agreement may be modified or amended or the provisions hereof waived with the
written consent of the Company and the Purchaser.
7.8 Waiver. No
failure to exercise, and no delay in exercising, any right, power or privilege
under this Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude the exercise of any
other right, power or privilege. No waiver of any breach of any
provision shall be deemed to be a waiver of any preceding or succeeding breach
of the same or any other provision, nor shall any waiver be implied from any
course of dealing between the Parties. No extension of time for
performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any
other obligations or any other acts. The rights and remedies of the
Parties under this Agreement are in addition to all other rights and remedies,
at law or equity that they may have against each other.
7.9 Binding Effect;
Assignment. The rights and obligations of this Agreement shall
bind and inure to the benefit of the Parties and their respective successors and
legal assigns. The provisions of this Agreement are intended to be
for the benefit of all Purchasers from time to time of the Shares and shall be
enforceable by any such Purchaser.
7.10 Counterparts. This
Agreement may be executed in any number of counterparts (whether by original
signature or a facsimile thereof), each of which shall be an original but all of
which together shall constitute one and the same instrument.
7.11 Headings. The
headings contained in this Agreement are for convenience of reference only and
are not to be given any legal effect and shall not affect the meaning or
interpretation of this Agreement.
7.12 GOVERNING LAW;
INTERPRETATION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF
OREGON WITHOUT
REGARD TO THE CONFLICTS OF LAWS RULES OF ANY OTHER JURSIDICTION.
7.13 Severability. The
parties stipulate that the terms and provisions of this Agreement are fair and
reasonable as of the date of this Agreement. However, if any
provision of this Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated. If, moreover, any of those provisions shall for any
reason be determined by a court of competent jurisdiction to be unenforceable
because excessively broad or vague as to duration, geographical scope, activity
or subject, it shall be construed by limiting, reducing or defining it, so as to
be enforceable.
7.14 State Blue Sky Rescission
Rights.
FLORIDA
LAW PROVIDES THAT WHEN SALES ARE MADE TO FIVE OR MORE PERSONS IN FLORIDA, ANY
SALE MADE IN FLORIDA IS VOIDABLE BY THE PURCHASER WITHIN THREE DAYS AFTER THE
FIRST TENDER OF CONSIDERATION IS MADE BY SUCH PURCHASER TO THE COMPANY, AN AGENT
OF THE COMPANY OR AN ESCROW AGENT OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF
THAT PRIVILEGE IS COMMUNICATED TO SUCH PURCHASER, WHICHEVER OCCURS
LATER. PAYMENTS FOR TERMINATED PURCHASES VOIDED BY PURCHASERS AS
PROVIDED FOR IN THIS PARAGRAPH WILL BE PROMPTLY REFUNDED WITHOUT
INTEREST. NOTICE SHOULD BE GIVEN TO THE COMPANY.
[Signature Page
Follows.]
m40032-1136747_6.doc
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and
delivered as of the date first above written.
COMPANY:
PACIFIC CONTINENTAL
CORPORATION
By: /s/Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: President/Chief
Operating Officer
PURCHASER:
|
For
purchases made by an Individual
|
For
purchases made by an Entity
|
|
Name
of Individual Purchaser over the age of 21 (Print)
|
Name
of Partnership, Company, Trust or Qualified Plan
|
|
By:
|
|
|
(Signature)
|
(Signature)
|
|
Residence
Street Address
|
Print
Name
|
|
City State Zip
Code
|
Title
|
|
Mailing
Address
|
Telephone
No.
|
|
City State Zip
Code
|
Tax
Identification Number
|
|
Telephone
No.
|
Street
Address of Company/Partnership
|
|
City State Zip
Code
|
m40032-1136747_6.doc
EXHIBIT
A
DEFINITIONS
1. Defined
Terms. As used herein the following terms shall have the
following meanings:
“Agreement”
means this Stock Purchase Agreement.
“Business
Day” means any day that is not a Saturday or Sunday or a day on which
banks are required or permitted to be closed in the State of
Oregon.
“Common
Stock” means the common stock, no par value per share, of the Company, as
constituted on the date hereof, and any capital stock into which such Common
Stock may thereafter be changed, and shall also include (i) capital stock
of the Company of any other class (regardless of how denominated) issued to the
holders of shares of Common Stock upon any reclassification thereof which is
also not preferred as to dividends or assets over any other class of stock of
the Company and which is not subject to redemption and (ii) shares of
common stock of any successor or acquiring corporation received by or
distributed to the holders of Common Stock of the Company.
“Company”
has the meaning set forth in the Preamble of this Agreement.
“Contract”
means any agreement, indenture, lease, sublease, license, sublicense, promissory
note, evidence of indebtedness, insurance policy, annuity, mortgage,
restriction, commitment, obligation or other contract, agreement or instrument
(whether written or oral).
“Convertible
Securities” means evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable, with or without payment
of additional consideration in cash or property, for additional shares of Common
Stock, either immediately or upon the occurrence of a specified date or a
specified event.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations promulgated thereunder,
all as the same shall be in effect from time to time.
“GAAP”
means generally accepted accounting principles in effect in the United States of
America from time to time.
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, and any entity or official exercising executive,
legislative, judicial, regulatory or administrative functions of, or pertaining
to, government.
“Indemnified
Party” has the meaning set forth in Section 6.2 of this
Agreement.
“Indemnifying
Party” has the meaning set forth in Section 6.2 of this
Agreement.
“Licenses” has the meaning set
forth in Section 3.16 of this Agreement.
“Lien”
means any mortgage, pledge, security interest, assessment, encumbrance, lien,
lease, sublease, adverse claim, levy, or charge of any kind, or any conditional
Contract, title retention Contract or other contract to give or refrain from
giving any of the foregoing.
“Losses”
has the meaning set forth in Section 6.1 of this Agreement.
“Material Adverse
Change” or “Material Adverse
Effect” means, with respect to any Person, any change or effect that is
or is reasonably likely to be materially adverse to the business, financial
condition, results of operations, prospects (solely to the extent they have been
publicly disclosed and subject to any qualifications and assumptions applicable
to such disclosure, including any forward-looking statement disclaimer) or,
where applicable, the management of such Person.
“Person(s)”
means any individual, sole proprietorship, partnership, joint venture, trust,
limited liability company, incorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
“Purchase
Price” has the meaning set forth in Section 1.1 of this
agreement.
“Purchaser”
has the meaning set forth in the Preamble of this Agreement.
“Requirement of
Law” means as to any Person, the articles of incorporation, bylaws or
other organizational or governing documents of such Person, and any domestic or
foreign and federal, state or local law, rule, regulation, statute or ordinance
or determination of any arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its properties
or to which such Person or any of its property is subject.
“SEC” means
the Securities and Exchange Commission.
“SEC
Reports” has the meaning set forth in Section 3.7 of this
Agreement.
“Securities
Act” means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations promulgated thereunder, all as
the same shall be in effect at the applicable time.
“Settlement”
has the meaning set forth in Section 1.2 of this Agreement.
“Settlement
Date” has the meaning set forth in Section 1.2 of this
Agreement.
“Subsidiary”
means each of those Persons of which another Person, directly or indirectly owns
beneficially securities having more than 50% of the voting power in the election
of directors (or persons fulfilling similar functions or duties) of the owned
Person (without giving effect to any contingent voting rights).
“Shares ”
has the meaning set forth in Section 1.1 of this Agreement.
2. Other Definitional
Provisions.
(a) All
references to “dollars” or “$” refer to currency of the United States of
America.
(b) Terms
defined in the singular shall have a comparable meaning when used in the plural,
and vice versa.
(c) All
matters of an accounting nature in connection with this Agreement and the
transactions contemplated hereby shall be determined in accordance with
GAAP.
(d) As
used herein, the neuter gender shall also denote the masculine and feminine, and
the masculine gender shall also denote the neuter and feminine, where the
context so permits.
(e) The
words “hereof,” “herein” and “hereunder,” and words of similar import, when used
in this Agreement shall refer to this Agreement as a whole (including any
exhibits or schedules hereto) and not to any particular provision of this
Agreement.
