INVESTMENT AGREEMENT Between SEACOAST BANKING CORPORATION OF FLORIDA and each of the PURCHASERS NAMED HEREIN Dated as of April 8, 2010
Exhibit 10.1
EXECUTION COPY
Between
SEACOAST BANKING CORPORATION OF FLORIDA
and each of the
PURCHASERS NAMED HEREIN
Dated as of April 8, 2010
TABLE OF CONTENTS
| Page | ||||
ARTICLE I PURCHASE; ESCROW; CLOSING |
2 | |||
1.1. Purchase |
2 | |||
1.2. Escrow; Closing |
2 | |||
1.3. Contingent and Non-Contingent Shares |
3 | |||
ARTICLE II REPRESENTATIONS AND WARRANTIES |
4 | |||
2.1. Disclosure |
4 | |||
2.2. Representations and Warranties of the Company |
5 | |||
2.3. Representations and Warranties of Each Purchaser |
17 | |||
ARTICLE III COVENANTS |
22 | |||
3.1. Filings; Other Actions |
22 | |||
3.2. Access, Information and Confidentiality |
24 | |||
3.3. Waiver of Change-of-Control Rights |
25 | |||
ARTICLE IV ADDITIONAL AGREEMENTS |
25 | |||
4.1. Transfer Restrictions |
25 | |||
4.2. Legend |
26 | |||
4.3. Reservation for Issuance |
28 | |||
4.4. [Reserved] |
28 | |||
4.5. Indemnity |
28 | |||
4.6. Exchange Listing |
30 | |||
4.7. Tax Treatment of Convertible Preferred Stock |
30 | |||
ARTICLE V CONDITIONS TO CLOSING; TERMINATION |
30 | |||
5.1. Conditions to Each Purchaser’s Obligations |
30 | |||
5.2. Conditions to Company’s Obligations |
32 | |||
5.3. Release of Escrow Funds |
33 | |||
5.4. Termination |
33 | |||
5.5. Rescission |
33 | |||
ARTICLE VI MISCELLANEOUS |
34 | |||
6.1. Survival |
34 | |||
6.2. Expenses |
34 | |||
6.3. Amendment; Waiver |
34 | |||
6.4. Counterparts and Facsimile |
34 | |||
i
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
6.5. Governing Law |
34 | |||
6.6. WAIVER OF JURY TRIAL |
34 | |||
6.7. Notices |
34 | |||
6.8. Entire Agreement, Etc. |
35 | |||
6.9. Interpretation; Other Definitions |
36 | |||
6.10. Captions |
37 | |||
6.11. Severability |
37 | |||
6.12. No Third Party Beneficiaries |
37 | |||
6.13. Time of the Essence |
37 | |||
6.14. Effectiveness |
37 | |||
6.15. Public Announcements |
37 | |||
6.16. Specific Performance |
38 | |||
6.17. Independent Nature of Purchasers’ Obligations and Rights |
38 | |||
6.18. Survival |
38 | |||
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LIST OF SCHEDULES AND EXHIBITS
Exhibit A-1:
|
Preferred Stock Articles of Amendment; Series B Preferred Stock | |
Exhibit A-2:
|
Preferred Stock Articles of Amendment; Series C Preferred Stock | |
Exhibit B:
|
Escrow Agreement | |
Exhibit C:
|
Form of Registration Rights Agreement | |
Exhibit D:
|
Procedures to be Followed for an Early Non-Contingent Share Closing |
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THIS INVESTMENT AGREEMENT dated as of April 8, 2010 (this “Agreement”), by and between
Seacoast Banking Corporation of Florida, a Florida corporation (the “Company”), and each of
the respective investors set forth on the signature pages hereto as a “Purchaser”
(collectively, the “Purchasers”), is effective as provided in Section 6.14.
RECITALS:
The Company will sell to the Purchasers, and the Purchasers will purchase from the Company, on
the terms and subject to the conditions set forth herein, shares of up to two series of mandatorily
convertible noncumulative nonvoting preferred stock of the Company, par value $.10 per share (the
“Convertible Preferred Stock”), which are convertible into shares of the Company’s common
stock, $0.10 par value per share (the “Common Stock”).
The term “Securities” refers collectively to (i) the shares of Convertible Preferred
Stock and (ii) the shares of Common Stock into which the Convertible Preferred Stock is
convertible. When purchased, the Convertible Preferred Stock will have the terms set forth in the
respective articles of amendment to the Company’s Amended and Restated Articles of Incorporation,
as amended (the “Articles of Incorporation”) with respect to each series in the form
attached hereto as
Exhibit A-1 and Exhibit A-2 (collectively, the “Preferred Stock Articles
of Amendment”) made a part of the Company’s Articles of Incorporation by the filing of the
Preferred Stock Articles of Amendment with the Secretary of State of the State of Florida (the
“Florida Secretary”) on the Closing Date (as defined in Section 1.2 hereto).
The Securities are being offered and sold at an aggregate Purchase Price of $250 million, and,
subject to the conditions set forth herein, the proceeds will be held in escrow pursuant to the
Escrow Agreement attached as Exhibit B hereto (the “Escrow Agreement”) for purposes
of qualifying the Company’s bank subsidiary, Seacoast National Bank (the “Bidder” or the
“Bank”), to make one or more bids (the “Bid”) to the Federal Deposit Insurance
Corporation (“FDIC”) to acquire the assets and liabilities (the “Acquisition”) of a
bank that has been placed in receivership (the “Target Institution”). The shares of
Convertible Preferred Stock offered, less the Non-Contingent Shares (as defined below), are
referred to as the “Contingent Shares.” The Contingent Shares, if issued, will be
designated as the Company’s Series C mandatorily convertible noncumulative nonvoting preferred
stock, par value $.10 per share having an initial Conversion Price of $1.55 (the “Series C
Preferred Stock”).
In the event the Company delivers a Notice of Non-Qualification, a Notice of Higher Bid, a
Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice (each as defined in the
Escrow Agreement), then the Company and the Purchasers will complete the Purchasers’ purchase of
$50 million (the “Non-Contingent Purchase Amount”) of shares of Convertible Preferred Stock
(the “Non-Contingent Shares”). Each such Purchaser has indicated to the Company the number
of Non-Contingent Shares it intends to purchase (the “Non-Contingent Allocation”). The
Non-Contingent Shares will be designated as the Company’s Series B mandatorily convertible noncumulative nonvoting preferred stock, par
value $.10 per share having an initial Conversion Price of $1.45 (the “Series B Preferred
Stock”).
The terms of the Series B Preferred Stock and the Series C Preferred Stock, if issued, will be
identical except for the Conversion Price and Conversion Ratio (each, as defined in the respective
Preferred Stock Articles of Amendment.)
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties,
covenants and agreements set forth herein, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
PURCHASE; ESCROW; CLOSING
1.1. Purchase. On the terms and subject to the conditions set forth herein, each
Purchaser will purchase from the Company, and the Company will sell to each such Purchaser, the
number of shares of Convertible Preferred Stock and at the purchase price per share (the “Price
per Share”) and the total purchase price (the “Purchase Price”) set forth on such
Purchaser’s signature page hereto.
1.2. Escrow; Closing.
(a) Upon the execution of this Agreement by each Purchaser and the Company, (i) each
Purchaser has deposited directly by wire transfer the applicable Purchase Price with
SunTrust Bank, as Escrow Agent (the “Escrow Agent”), pursuant to that certain
Escrow Agreement (in the form attached hereto as Exhibit B) among the Purchasers,
the Company and the Escrow Agent (as it may be amended from time to time, the “Escrow
Agreement”) and (ii) the Company has issued instructions to Continental Stock
Transfer and Trust Company, the Company’s transfer agent (the “Transfer Agent”)
authorizing the issuance to each Purchaser of the shares of Convertible Preferred Stock
specified on each such Purchaser’s signature page hereto concurrent with the Escrow
Agent’s release of the Purchase Price to the Company pursuant to the Escrow Agreement.
(b) As specified in the Escrow Agreement and on the dates specified therein, the
Escrow Agent shall release the applicable Purchase Price to the Company, and if
applicable return the applicable contingent portions of the Purchase Price to the
respective Purchaser, and the Transfer Agent shall issue the applicable shares of
Convertible Preferred Stock to each Purchaser. The release of funds to the Company and
the concurrent issuance of shares of Convertible Preferred Stock to the Purchasers shall
be referred to herein as the “Closing” and the date of the Closing shall be
referred to herein as the “Closing Date.”
(c) If any Purchaser is prohibited from consummating its purchase of shares of
Convertible Preferred Stock on other than a delivery-versus payment (“DVP”) basis
and such Purchaser has indicated to the Company in writing (by marking such Purchaser’s
signature page hereto or otherwise) that such Purchaser is relying on this Section 1.2(c)
instead of on Sections 1.2(a), (b) and (d) (in such event, such Purchaser shall be
referred to in certain provisions hereof as a “Section 1.2(c) Purchaser”),
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Section 1.2(a), Section 1.2(b) and Section 1.2(d) shall not apply and shall have no force
or effect with respect to a Section 1.2(c) Purchaser, and this Section 1.2(c) shall apply
instead. This Section 1.2(c) shall not apply and shall have no force or effect with
respect to any Purchaser that is not a Section 1.2(c) Purchaser. If a Purchaser is a
Section 1.2(c) Purchaser, then not later than 4:00 p.m. (New York City time) on the
Closing Date designated by the Company to such Purchaser in writing as far in advance as
practicable but in any event at least one business day prior to such Closing Date (i)
such Purchaser shall pay its Purchase Price by wire transfer of funds immediately
available to the Company to an account designated by the Company and (ii) the Company
shall issue instructions to the Transfer Agent to issue, in certificated form prior to
and in consideration of payment in full of the Purchase Price by the Purchaser on the
same business day, the shares of Convertible Preferred Stock specified on such
Purchaser’s signature page hereto concurrent with such Purchaser’s payment of its
Purchase Price to the Company; provided, however, that if such Purchaser requires
physical certificates, then the Company shall instruct the Transfer Agent to deliver
certificates representing the shares of Convertible Preferred Stock to such Purchaser
prior to such Purchaser’s payment of its Purchase Price to the Company.
(d) It is understood that, with respect to CapGen Capital Group III LP
(“CapGen” and a “Section 1.2(d) Purchaser”), such Purchaser is relying on
this Section 1.2(d) instead of on Sections 1.2(a), (b) and (c) and Section 1.2(a),
Section 1.2(b) and Section 1.2(c) shall not apply and shall have no force or effect with
respect to such Purchaser, and this Section 1.2(d) shall apply instead. This Section
1.2(d) shall not apply and shall have no force or effect with respect to any Purchaser
other than CapGen. CapGen will as soon as reasonably practicable and not later than 10
days following the receipt of necessary regulatory approvals pay its Purchase Price for
the Non-Contingent Shares (if only Non-Contingent Shares are being sold hereunder), and
not later than 10 days following the later of (x) the receipt of necessary regulatory
approvals and (y) notice from the Company that the Bidder is the winning Bidder on the
Acquisition pay its Purchase Price for the Contingent Shares and Non-Contingent Shares
(if Contingent Shares and Non-Contingent Shares are being sold concurrently hereunder),
in each case by wire transfer of immediately available funds to the Company.
(e) Notwithstanding anything to the contrary contained in this Agreement, if the
Company shall decide to close the offering of Non-Contingent Shares prior to any Closing with respect to Contingent Shares the procedures set forth in
Exhibit D shall apply.
1.3. Contingent and Non-Contingent Shares. The total Purchase Price specified on the
Purchaser’s signature page is the total purchase price for the Contingent Shares and Non-Contingent
Shares subscribed irrevocably by the Purchaser hereunder. If a Purchaser has given written
direction on the signature page of this Agreement or has provided a letter of direction executed by
the Purchaser and the Company that it elects not to purchase Non-Contingent Shares, then such
Purchaser shall have no obligation to purchase Non-Contingent Shares and the Purchase Price for the
Non-Contingent Shares shall be zero, and all its funds held by the Escrow
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Agent shall be applied or refunded in accordance with the Escrow Agreement. The Non-Contingent Shares will be sold by the
Company regardless of whether the Company is qualified to make a bid or is the winning bidder to
the FDIC for an acquisition of the Target Institution. The portion of the total Purchase Price
applicable to the Contingent Shares shall be refunded to each Purchaser as provided in the Escrow
Agreement in the event the Company delivers a Notice of Non-Qualification, a Notice of Higher Bid,
a Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice (each as defined in the
Escrow Agreement). The Purchase Price for the Non-Contingent Shares shall be retained in Escrow
and be applied to purchase the Non-Contingent Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Disclosure.
(a) On or prior to April 6, 2010, the Company delivered to the Purchasers and
Purchasers delivered to the Company a schedule (a “Disclosure Schedule”) setting
forth disclosures either in response to an express disclosure requirement contained
herein or as an exception to one or more representations or warranties contained in
Section 2.2 with respect to the Company, or in Section 2.3 with respect to any Purchaser,
or to one or more covenants contained in Article III.
(b) As used in this Agreement, any reference to any fact, change, circumstance or
effect being “material” with respect to the Company means such fact, change, circumstance
or effect is material in relation to the business, assets, results of operations or
financial condition of the Company and the Company’s subsidiaries (“Company
Subsidiaries”) taken as a whole. As used in this Agreement, the term “Material
Adverse Effect” means any circumstance, event, change, development or effect that,
individually or in the aggregate, (1) is material and adverse to the business, assets,
results of operations, financial condition or prospects of the Company and the
Company Subsidiaries taken as a whole or (2) would materially impair the ability of
the Company to perform its obligations under this Agreement or to consummate the Closing;
provided, however, that in determining whether a Material Adverse Effect has occurred,
there shall be excluded any effect to the extent resulting from the following: (A)
changes, after the date hereof, in U.S. generally accepted accounting principles
(“GAAP”) or regulatory accounting principles generally applicable to banks or
their holding companies, (B) changes, after the date hereof, in applicable laws, rules
and regulations or interpretations thereof by Governmental Entities (as defined below),
(C) actions or omissions of the Company expressly required by the terms of this Agreement
or taken with the prior written consent of the Purchasers, (D) changes, after the date
hereof, in general economic, monetary or financial conditions, including changes in
prevailing interest rates, credit markets, secondary mortgage market conditions or
housing sales and pricing trends, (E) changes in the market price or trading volumes of
the Common Stock or the Company’s other securities (but not the underlying causes of such
changes), (F) changes in global or national political conditions, including the outbreak
or escalation of war or acts of terrorism, and (G) the
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public disclosure of this Agreement or the transactions contemplated hereby; except, with respect to clauses (A),
(B), (D) and (F), to the extent that the effects of such changes have a disproportionate
effect on the Company and the Company Subsidiaries, taken as a whole, relative to other
similarly situated banks, savings associations or their holding companies generally.
(c) “Previously Disclosed” with regard to (1) a party means information set
forth on its Disclosure Schedule and (2) the Company means information publicly disclosed
by the Company in (A) its Annual Report on Form 10-K for the fiscal year ended December
31, 2009, as filed by it with the Securities and Exchange Commission (“SEC”) (the
“Company 10-K”), (B) its Preliminary Proxy Statement on Schedule 14A, as filed by
it with the SEC on March 22, 2010, as the same may be amended to authorize additional
shares of Common Stock and/or to approve the issuance of the Common Stock upon conversion
of the Convertible Preferred Stock, (C) any Current Report on Form 8-K filed or furnished
by it with the SEC since January 1, 2010 available prior to the date hereof or (D) the
Form 13-D filed by CapGen and its affiliates on April 1, 2010.
2.2. Representations and Warranties of the Company. The Company represents and
warrants to each Purchaser, as of the date hereof and as of the Closing Date (except to the extent
made only as of a specified date in which case as of such date), that:
(a) Organization and Authority.
(1) The Company is a corporation duly organized and validly existing under the
laws of the State of Florida, is duly qualified to do business and is in good standing in all jurisdictions where its ownership or leasing of property
or the conduct of its business requires it to be so qualified and where failure to
be so qualified would have a Material Adverse Effect, and has the corporate power
and authority to own its properties and assets and to carry on its business as it is
now being conducted. The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (“BHC Act”). The Company
has furnished to Purchaser true, correct and complete copies of the Articles of
Incorporation and bylaws as in effect on March 31, 2010.
(2) Each Company Significant Subsidiary is duly organized and validly existing
under the laws of its jurisdiction of organization, is duly qualified to do business
and is in good standing in all jurisdictions where its ownership or leasing of
property or the conduct of its business requires it to be so qualified and where
failure to be so qualified would have a Material Adverse Effect, and has the
corporate power and authority and governmental authorizations to own its properties
and assets and to carry on its business as it is being conducted. As used herein,
(i) “Subsidiary” means, with respect to any person, corporation,
partnership, joint venture, limited liability company or other entity (1) of which
such person or a subsidiary of such person is a general partner or (2) at least a
majority of the securities or other interests, which by their terms, have ordinary
voting power to elect a majority of the board of directors or persons performing
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similar functions with respect to such entity is directly or indirectly owned by
such person; (ii) “Company Subsidiary” means any Subsidiary of the Company;
(iii) “Company Significant Subsidiary” means any Significant Subsidiary of
the Company; and (iv) “Significant Subsidiary” means, with respect to any
person, any Subsidiary that would constitute a “significant Subsidiary” of such
person within the meaning of Rule 1-02 of Regulation S-X of the SEC. The Bank is
duly organized and validly existing as a national banking association, and its
deposit accounts are insured up to applicable limits by the FDIC.
(b) Capitalization. The Company has the capitalization set forth on
Schedule 2.2(b). All of 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 were not issued in violation of any pre-emptive rights, resale rights, rights of
first refusal or similar rights. No bonds, debentures, notes or other indebtedness
having the right to vote on any matters on which the stockholders of the Company may vote
are issued and outstanding. There are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the
Securities. Except as Previously Disclosed, there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company, or contracts, commitments, understandings or
arrangements by which the Company is or may become bound to issue additional shares of
capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares of capital stock of the
Company. Except as Previously Disclosed with respect to registration rights granted to
CapGen and the U.S. Department of the Treasury and the registration rights granted under
this Agreement, there are no agreements or arrangements under which the Company is
obligated to register the sale of any of their securities under the Securities Act.
Other than repurchase agreements entered into in the ordinary course of the Bank’s
business, there are no outstanding securities of the Company or which contain any
provisions requiring the Company to redeem or repurchase such securities, and there are
no contracts, commitments, understandings or arrangements by which the Company is bound
to redeem a security of the Company.
(c) Company Subsidiaries. Exhibit 21 to the Company’s Annual Report on Form
10-K for the year ended December 31, 2009 sets forth a list of the Company Subsidiaries,
including the Company’s Significant Subsidiaries, which were required to be set forth by
SEC rules in such exhibit. Except for the statutory trusts established by the Company
and that have issued and outstanding trust preferred securities, the Company owns,
directly or indirectly, all of the issued and outstanding shares of capital stock of or
all other equity interests in each of the Company Subsidiaries, free and clear of any
liens, charges, adverse rights or claims, pledges, covenants, title defects, security
interests and other encumbrances of any kind (“Liens”), and all of such shares or
equity interests are duly authorized and validly issued and are fully paid, nonassessable
and free of preemptive rights, with no personal liability attaching to the ownership
thereof. No Company Subsidiary has or is bound by any outstanding
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subscriptions, options, warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock, any other equity security or any
voting debt or any securities representing the right to purchase or otherwise receive any shares of capital stock, any other equity security or any voting debt of such Company
Subsidiary.
(d) Authorization.
(1) The Company has the corporate power and authority to enter into this
Agreement, the Escrow Agreement, the Registration Rights Agreement and to establish
the Series B Preferred Stock and the Series C Preferred Stock and to enter into such
other transaction documents, instruments and agreements as may be necessary and
appropriate and to carry out its obligations hereunder and under such other
transaction documents, instruments and agreements, subject, in the case of the
conversion (the “Conversion”) of the Convertible Preferred Stock into Common Stock, to the prior approval of the Company’s
stockholders of (i) the Conversion for purposes of Rule 5635 of the Nasdaq Stock
Market Rules and (ii) the authorization of additional shares of Common Stock by
amendment of the Company’s Articles of Incorporation to approve the increase in the
number of authorized shares of Common Stock to permit the Conversion in full and for
general corporate purposes (the “Stockholder Approvals”). The execution,
delivery and performance of this Agreement by the Company and the consummation of
the transactions contemplated hereby have been duly authorized by the Company’s
board of directors (the “Board of Directors”), subject, with respect to the
Conversion and the issuance of the Common Stock issuable upon Conversion, to the
Stockholder Approvals. This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and delivery
by each Purchaser, is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms (except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting
creditors’ rights or by general equity principles). Other than the Stockholder
Approvals with respect to the Conversion and the issuance of the Common Stock
issuable upon Conversion, no other corporate proceedings are necessary for the
execution and delivery by the Company of this Agreement, the performance by it of
its obligations hereunder or the consummation by it of the transactions contemplated
hereby.
(2) Neither the execution and delivery by the Company of this Agreement, the
Escrow Agreement, the Registration Rights Agreement, nor the consummation of the
transactions contemplated hereby, nor compliance by the Company with any of the
provisions hereof (including the conversion provisions of the Convertible Preferred
Stock), will (A) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or result in the
loss of any benefit or creation of any right on the part of any third party under,
or accelerate the performance required by, or result
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in a right of termination or
acceleration of, or result in the creation of any Lien upon any of the material
properties or assets of the Company or any Company Subsidiary under any of the
terms, conditions or provisions (i) of the Company’s Articles of Incorporation or
bylaws or the articles of association, charter, bylaws or other governing instrument
of any Company Significant Subsidiary, subject in the case of the authorization and
issuance of the shares of Common Stock to be issued on conversion of the Convertible
Preferred Stock to be purchased under this Agreement, to the receipt of the
Stockholder Approvals or (ii) any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which the Company or
any Company Significant Subsidiary is a party or by which it may be bound, or to which the Company or any Company
Significant Subsidiary or any of the properties or assets of the Company or any
Company Subsidiary may be subject, or (B) subject to compliance with the statutes
and regulations referred to in Section 2.2(e) and the Nasdaq Marketplace Rules,
violate any law, statute, ordinance, rule, regulation, permit, concession, grant,
franchise or any judgment, ruling, order, writ, injunction or decree applicable to
the Company or any Company Subsidiary or any of their respective properties or
assets, except in the case of clauses (A)(ii) and (B) for such violations, conflicts
and breaches as would not reasonably be expected to have a Material Adverse Effect.
The issuance and sale of the shares of Convertible Preferred Stock hereunder does
not contravene the rules and regulations of Nasdaq Global Select Market.
(e) Governmental Consents. Other than the securities or blue sky laws of
the various states and the authorization for listing on the Nasdaq Global Select Market
of the shares of Common Stock into which the Convertible Preferred Stock is convertible,
no material notice to, registration, declaration or filing with, exemption or review by,
or authorization, order, consent or approval of, any court, administrative agency or
other governmental authority, whether federal, state, local or foreign, or any applicable
industry self-regulatory organization (each, a “Governmental Entity”), or
expiration or termination of any statutory waiting period, is necessary for the
consummation by the Company of the sale of the Securities contemplated by this Agreement;
provided, however, the FDIC has not approved the Company to make a Bid for the
Acquisition of the Target Institution and no Governmental Entity has approved the
Acquisition.
(f) Financial Statements. Each of the consolidated balance sheets of the
Company and the Company Subsidiaries and the related consolidated statements of income,
stockholders’ equity and cash flows, together with the notes thereto (collectively, the
“Company Financial Statements”), included in any Company Report filed with the
SEC after December 31, 2009 and prior to the date hereof, (1) has been prepared from, and
are in accordance with, the books and records of the Company and the Company
Subsidiaries, (2) complied as to form, as of their respective date of filing with the
SEC, in all material respects with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto, (3) have been prepared
in accordance with GAAP applied on a consistent basis during the periods involved and (4)
present fairly in all material respects the consolidated financial
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position of the Company and the Company Subsidiaries as of the dates set forth therein and the
consolidated results of operations, changes in stockholders’ equity and cash flows of the
Company and the Company Subsidiaries for the periods stated therein, subject, in the case
of any unaudited financial statements, to normal recurring year-end adjustments, which
would not be material, individually or in the aggregate.
(g) Reports.
(1) Since December 31, 2008, the Company and each Company Subsidiary has filed
all material reports, registrations, documents, filings, statements and submissions,
together with any amendments thereto, that it was required to file with any
Governmental Entity (the foregoing, collectively, the “Company Reports”) and
has paid all material fees and assessments due and payable in connection therewith.
As of their respective dates of filing, the Company Reports complied in all material
respects with all statutes and applicable rules and regulations of the applicable
Governmental Entities. To the knowledge of the Company, as of the date hereof,
there are no outstanding comments from the SEC or any other Governmental Entity with
respect to any Company Report. In the case of each such Company Report filed with
or furnished to the SEC, such Company Report did not, as of its date or if amended
prior to the date hereof, as of the date of such amendment, 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 in it, in light of the
circumstances under which they were made, not misleading and complied as to form in
all material respects with the applicable requirements of the Securities Act of
1933, as amended, and the SEC’s rules and regulations thereunder (the
“Securities Act”) and the Securities Exchange Act of 1934, as amended, and
the SEC’s rules and regulations thereunder (the “Exchange Act”). With
respect to all other Company Reports, the Company Reports were complete and accurate
in all material respects as of their respective dates, as amended. Since January 1,
2009, the Company has timely filed all documents required to be filed with the SEC
pursuant to Sections 13(a), 14(a) and 15(d) of the Exchange Act or pursuant to the
Securities Act.
(2) The records, systems, controls, data and information of the Company and the
Company Subsidiaries are recorded, stored, maintained and operated under means that
are under the exclusive ownership and direct control of the Company or the Company
Subsidiaries or their accountants (including all means of access thereto and
therefrom), except for any non-exclusive ownership and non-direct control that would
not reasonably be expected to have a material adverse effect on the system of
internal accounting controls described below in this Section 2.2(g). Except as may
have been Previously Disclosed, the Company (A) has implemented and maintains
disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange
Act) to ensure that material information relating to the Company, including the
consolidated Company Subsidiaries, is made known to the chief executive officer and
the chief financial officer of the Company by others within those entities, and (B)
has disclosed,
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based on its most recent evaluation prior to the date hereof, to the Company’s outside auditors and the audit committee of the Board of Directors (x) any
significant deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting (as defined in Rule 13a-15(f) of the
Exchange Act) that are reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information and (y) any fraud,
whether or not material, that involves management or other employees who have a
significant role in the Company’s internal controls over financial reporting.
(h) Properties and Leases. Except as would not reasonably be expected to
have a Material Adverse Effect, the Company and the Company Subsidiaries have good and
marketable title to all real properties and all other properties and assets owned by
them, in each case free from Liens that would affect the value thereof or interfere with
the use made or to be made thereof by them. Except as would not reasonably be expected
to have a Material Adverse Effect, the Company and the Company Subsidiaries hold all
leased real or personal property under valid and enforceable leases with no exceptions
that would interfere with the use made or to be made thereof by them.
(i) Taxes. (1) Each of the Company and the Company Subsidiaries has (x)
duly and timely filed (including pursuant to applicable extensions granted without
penalty) all material Tax Returns required to be filed by it and such Tax Returns are
true and complete in all material respects and (y) paid in full all material Taxes due or
made adequate provision in the financial statements of the Company (in accordance with
GAAP) for any such Taxes, whether or not shown as due on such Tax Returns; (2) no
material deficiencies for any Taxes have been proposed, asserted or assessed in writing
against or with respect to any Taxes due by or Tax Returns of the Company or any of the
Company Subsidiaries which deficiencies have not since been resolved, except for Taxes
proposed, asserted or assessed that are being contested in good faith by appropriate
proceedings and for which reserves adequate in accordance with GAAP have been provided;
(3) there are no material Liens for Taxes upon the assets of either the Company or the
Company Subsidiaries, except for statutory Liens for current Taxes not yet due or Liens
for Taxes that are being contested in good faith by appropriate proceedings and for which
reserves adequate in accordance with GAAP have been provided; and (4) none of the Company
or any Company Subsidiary has engaged in any transaction that is a “listed transaction”
for federal income tax purposes within the meaning of Treasury Regulations section
1.6011-4, which has not yet been the subject of an audit that has been completed and
resolved. The issuance of the Convertible Preferred Stock purchased from the Company by
all Purchasers pursuant to this Agreement will result in the Company undergoing an
ownership change for purposes of Section 382 of the Code. For purposes of this
Agreement, “Taxes” shall mean all taxes, charges, levies, penalties
or other assessments imposed by any United States federal, state, local or foreign taxing
authority, including any income, excise, property, sales, transfer, franchise, payroll,
withholding, social security or other taxes, together with any interest, penalties, addition to tax, or additional amount attributable thereto, any
liability attributable to the foregoing as a transferee and any payments made or owing to
any other person measured by such taxes, charges, levies, penalties
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or other assessment,
whether pursuant to a tax indemnity agreement, tax sharing payment or otherwise (other
than pursuant to commercial agreements or Benefit Plans). For purposes of this
Agreement, “Tax Return” shall mean any return, report, information return or
other document (including any related or supporting information) required to be filed
with any taxing authority with respect to Taxes, including all information returns
relating to Taxes of third parties, any claims for refunds of Taxes and any amendments or
supplements to any of the foregoing.
(j) Absence of Certain Changes. Since December 31, 2009, (1) the Company
and the Company Subsidiaries have conducted their respective businesses in all material
respects in the ordinary course, consistent with prior practice, other than seeking to
participate in a bid to the FDIC for the Target Institution and the offer and potential
sale and issuance of the Contingent Shares and the Non-Contingent Shares, (2) except for
publicly disclosed ordinary dividends on the Common Stock and outstanding preferred stock
of the Company, the Company has not made or declared any distribution in cash or in kind
to its stockholders or issued or repurchased any shares of its capital stock or other
equity interests and (3) no event or events have occurred that has had or would
reasonably be expected to have a Material Adverse Effect.
(k) No Undisclosed Liabilities. Neither the Company nor any of the Company
Subsidiaries has any liabilities or obligations of any nature (absolute, accrued,
contingent or otherwise) which are not properly reflected or reserved against in the
Company Financial Statements to the extent required to be so reflected or reserved
against in accordance with GAAP, except for (1) liabilities that have been Previously
Disclosed or have arisen since December 31, 2009 in the ordinary and usual course of
business and consistent with past practice, (2) contractual liabilities under (other than
liabilities arising from any breach or violation of) agreements Previously Disclosed or
not required by this Agreement to be so disclosed and (3) liabilities that have not had
and would not reasonably be expected to have a Material Adverse Effect.
(l) Offering of Securities. Neither the Company nor any person acting on
its behalf has taken any action (including any offering of any securities of the Company
under circumstances which would require the integration of such offering with the
offering of any of the Securities to be issued pursuant to this Agreement under the
Securities Act), that has caused or would cause the offering, issuance or sale of any of
the Securities to the Purchasers pursuant to this Agreement to be subject to the
registration requirements of the Securities Act. Neither the Company nor any person
acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in
connection with any offer or sale of the Securities.
(m) Status of Securities. The shares of Convertible Preferred Stock (upon
filing of the related Preferred Stock Articles of Amendment with the Florida Secretary)
to be issued pursuant to this Agreement have been duly authorized by all necessary
corporate action. When issued and sold against receipt of the consideration therefor as
provided in this Agreement, such shares of Convertible Preferred Stock will be validly
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issued, fully paid and nonassessable and will not subject the holders thereof to personal
liability. The shares of Common Stock issuable upon the Conversion of the Convertible
Preferred Stock, if any, will, upon receipt of the Stockholder Approvals and the filing
of the Articles of Amendment to the Company’s Articles of Incorporation with the Florida
Secretary to increase the number of shares of Common Stock authorized, have been duly
authorized by all necessary corporate action and when so issued upon such conversion will
be validly issued, fully paid and nonassessable, will not subject the holders thereof to
personal liability and will not be subject to preemptive rights of any other stockholder
of the Company.
(n) Litigation and Other Proceedings. Except as Previously Disclosed, there
is no pending or, to the knowledge of the Company, threatened, claim, action, suit,
investigation or proceeding, against the Company or any Company Subsidiary or to which
any of their assets are subject, nor is the Company or any Company Subsidiary subject to
any order, judgment or decree, in each case except as would not reasonably be expected to
have a Material Adverse Effect. Except as would not reasonably be expected to have a
Material Adverse Effect or as Previously Disclosed in the case of dividends and
distributions on outstanding Company securities, there is no unresolved violation, or
material criticism or exception by any Governmental Entity with respect to any report or
relating to any examinations or inspections of the Company or any Company Subsidiaries.
(o) Compliance with Laws.
(1) The Company is a bank holding company registered under the BHC Act; the
Company and each of its subsidiaries have conducted their businesses in compliance
with all applicable federal, state and foreign laws, orders, judgments, decrees,
rules, regulations and applicable stock exchange requirements, including all laws
and regulations restricting activities of bank holding companies and banking
organizations, except for any noncompliance that, individually or in the aggregate,
has not had and would not be reasonably be expected to have a Material Adverse
Effect.
(2) The Company and each Company Subsidiary have all material permits,
licenses, franchises, authorizations, orders and approvals of, and have
made all filings, applications and registrations with, Governmental Entities
that are required in order to permit them to own or lease their properties and
assets and to carry on their business as presently conducted and that are material
to the business of the Company or such Company Subsidiary. The Company and each
Company Subsidiary has complied in all respects and is not in default or violation
in any respect of, and none of them is, to the knowledge of the Company, under
investigation with respect to or, to the knowledge of the Company, has been
threatened to be charged with or given notice of any violation of, any applicable
domestic (federal, state or local) or foreign law, statute, ordinance, license,
rule, regulation, policy or guideline, order, demand, writ, injunction, decree or
judgment of any Governmental Entity, other than such noncompliance, defaults or
violations that would not reasonably be expected to have a Material Adverse
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Effect. Except for statutory or regulatory restrictions of general application or as
Previously Disclosed, no Governmental Entity has placed any material restriction on
the business or properties of the Company or any Company Subsidiary.
(p) Labor. Employees of the Company and the Company Subsidiaries are not
represented by any labor union nor are any collective bargaining agreements otherwise in
effect with respect to such employees. No labor organization or group of employees of
the Company or any Company Subsidiary has made a pending demand for recognition or
certification, and there are no representation or certification proceedings or petitions
seeking a representation proceeding presently pending or, to the knowledge of the
Company, threatened to be brought or filed with the National Labor Relations Board or any
other labor relations tribunal or authority. There are no organizing activities,
strikes, work stoppages, slowdowns, lockouts, material arbitrations or material
grievances, or other material labor disputes pending or, to the knowledge of the Company,
threatened against or involving the Company or any Company Subsidiary.
(q) Company Benefit Plans.
(1) Except as has not had or would not reasonably be expected to have a
Material Adverse Effect or which have been Previously Disclosed, (A) with respect to
each Benefit Plan, the Company and the Company Subsidiaries have complied, and are
now in compliance, in all material respects, with all provisions of ERISA, the Code
and all laws and regulations applicable to such Benefit Plan; and (B) each Benefit
Plan has been administered in all material respects in accordance with its terms.
“Benefit Plan” means any employee welfare benefit plan within the meaning of
Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), any employee pension benefit plan within the meaning of Section
3(2) of ERISA and any bonus, incentive, deferred compensation, vacation, stock
purchase, stock option, severance, employment, change of control or fringe
benefit plan, program, agreement or policy.
(2) Except as has not had or would not reasonably be expected to have a
Material Adverse Effect or which have been Previously Disclosed, and except for
liabilities fully reserved for or identified in the Financial Statements, no claim
has been made, or to the knowledge of the Company threatened, against the Company or
any of the Company Subsidiaries related to the employment and compensation of
employees or any Benefit Plan, including any claim related to the purchase of
employer securities or to expenses paid under any defined contribution pension plan.
(r) Risk Management Instruments. Except as has not had or would not
reasonably be expected to have a Material Adverse Effect, all material derivative
instruments, including, swaps, caps, floors and option agreements, whether entered into
for the Company’s own account, or for the account of one or more of the Company
Subsidiaries, were entered into (1) only in the ordinary course of business, (2) in
accordance with prudent practices and in all material respects with all applicable
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laws, rules, regulations and regulatory policies and (3) with counterparties believed to be
financially responsible at the time; and each of them constitutes the valid and legally
binding obligation of the Company or one of the Company Subsidiaries, enforceable in
accordance with its terms. Neither the Company or the Company Subsidiaries, nor, to the
knowledge of the Company, any other party thereto, is in breach of any of its material
obligations under any such agreement or arrangement.
(s) Agreements with Regulatory Agencies. Except as Previously Disclosed,
neither the Company nor any Company Subsidiary is subject to any cease-and-desist or
other similar order or enforcement action issued by, or is a party to any written
agreement, consent agreement or memorandum of understanding with, or is a party to any
commitment letter or similar undertaking to, or is a recipient of any extraordinary
supervisory letter from, or is subject to any capital directive by, or since December 31,
2008, has adopted any board resolutions at the request of, any Governmental Entity that
currently restricts in any material respect the conduct of its business or that in any
material manner relates to its capital adequacy, its liquidity and funding policies and
practices, its ability to pay dividends, its credit, risk management or compliance
policies, its internal controls, its management or its operations or business (each item
in this sentence, a “Regulatory Agreement”), nor has the Company or any Company
Subsidiary been advised since December 31, 2008 and until the date hereof by any
Governmental Entity that it is considering issuing, initiating, ordering, or requesting
any such Regulatory Agreement. The Company and each Company Subsidiary are in compliance
in all material respects with each Regulatory Agreement to which it is party or subject,
and neither the Company nor any Company Subsidiary has received any notice from any
Governmental Entity indicating that either the Company or any Company Subsidiary is
not in compliance in all material respects with any such Regulatory Agreement.
(t) Environmental Liability. Except as Previously Disclosed, there is no
legal, administrative, arbitral or other proceeding, claim, action or notice of any
nature seeking to impose, or that could result in the imposition of, on the Company or
any Company Subsidiary, any liability or obligation of the Company or any Company
Subsidiary with respect to any environmental health or safety matters or any private or
governmental, health or safety investigations or remediation activities of any nature
arising under common law or under any local, state or federal environmental, health or
safety statute, regulation or ordinance, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), pending
or, to the Company’s knowledge, threatened against the Company or any Company Subsidiary
the result of which has had or would reasonably be expected to have a Material Adverse
Effect; to the Company’s knowledge, there is no reasonable basis for, or circumstances
that are reasonably likely to give rise to, any such proceeding, claim, action,
investigation or remediation; and to the Company’s knowledge, neither the Company nor any
Company Subsidiary is subject to any agreement, order, judgment, decree, letter or
memorandum by or with any Governmental Entity or third party imposing any such
environmental liability.
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(u) Knowledge as to Conditions. The sale of $250 million of capital
securities of the Company has been requested by the FDIC as a condition to qualify the
Bank as a bidder in the Acquisition of the Target Institution, and this amount will be
required, among other things, for the Bank, if qualified by the FDIC, to complete the
Acquisition.
(v) Brokers and Finders. Except for Sandler X’Xxxxx & Partners, L.P. (the
“Placement Agent”), neither the Company nor any Company Subsidiary nor any of
their respective officers, directors, employees or agents, has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage fees,
commissions or finder’s fees, and no broker or finder has acted directly or indirectly
for the Company or any Company Subsidiary, in connection with this Agreement or the sale
of the Convertible Preferred Stock.
(w) Money Laundering Laws. The operations of the Company and the Company
Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Company Subsidiary with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened, except, in each case, as would not reasonably be
expected to have a Material Adverse Effect.
(x) OFAC. Neither the Company nor any Company Subsidiary nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any Company Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and the Company will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.
(y) Listing. The Common Stock is listed on the Nasdaq Global Select Market,
and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the Nasdaq Global Select Market, nor has the Company received any
notification that the Nasdaq Global Select Market that it is contemplating terminating
such registration or listing. The Company has not, in the 12 months preceding the date
hereof, received written notice from the Nasdaq Global Select Market to the effect that
the Company is not in compliance with the listing or maintenance requirements of the
Nasdaq Global Select Market.
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(z) Transactions With Affiliates and Employees. Except as Previously
Disclosed and other than the grant of stock options, restricted stock or other equity
awards that are not individually or in the aggregate material in amount, none of the
officers or directors of the Company and, to the Company’s knowledge, none of the
employees of the Company, is presently a party to any transaction with the Company or to
a presently contemplated transaction (other than for services as employees, officers and
directors) that would be required to be disclosed pursuant to Item 404 of Regulation S-K
promulgated under the Securities Act since December 31, 2008.
(aa) Investment Company. Neither the Company nor any of its Subsidiaries is
required to be registered as, and is not an Affiliate of, and immediately following the
Closing will not be required to register as, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
(bb) Questionable Payments. Neither the Company nor any of its
Subsidiaries, nor any directors, officers, nor to the Company’s knowledge, employees,
agents or other persons acting at the direction of or on behalf of the Company or any of
its Subsidiaries has, in the course of its actions for, or on behalf of, the Company: (a)
directly or indirectly, used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to foreign or domestic political
activity; (b) made any direct or indirect unlawful payments to any foreign or domestic
governmental officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds; (c) violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended, or (d) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other material unlawful payment to any foreign or domestic
government official or employee.
(cc) Application of Takeover Protections; Rights Agreements. The Company
has not adopted any stockholder rights plan relating to accumulations of beneficial
ownership of Common Stock or a change in control of the Company. The Company and its
board of directors have taken all necessary action, if any is needed, 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 articles of incorporation or other organizational documents or the laws of
the jurisdiction of its incorporation which is applicable to any Purchaser solely as a
result of the Company’s issuance of the Securities and any Purchaser’s ownership of the
Securities.
(dd) No Manipulation. In the last thirty (30) days, the Company has not,
and to the Company’s knowledge no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale
of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the securities of the Company or (iii) paid or agreed to
pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii) compensation
paid to the
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Placement Agent in connection with the placement of the shares of Convertible
Preferred Stock.
(ee) Shell Company Status. The Company is not, and has never been, an
issuer identified in Rule 144(i)(1).
(ff) Adequate Capitalization. As of December 31, 2009, the Company’s
Subsidiary insured depository institutions meet or exceed the standards necessary to be
considered “adequately capitalized” under FDIC Regulation §325.103.
(gg) Assuming the accuracy of the other representations and warranties of each
Purchaser and the performance of the covenants and agreements of each Purchaser contained
herein, the Company and the Bank are not subject to, and do not expect that, as a result
of the issuance of shares of Convertible Preferred Stock provided herein, will become
subject to, the FDIC Statement of Policy on Qualifications for Failed Bank Acquisitions (August 26, 2009) (the “FDIC Policy
Statement”).
(hh) CapGen. CapGen, subject to the terms and conditions hereof and subject
to the receipt of necessary regulatory approvals, has agreed with the Company to purchase
Convertible Preferred Stock in satisfaction of the preemptive right previously granted to
CapGen.
2.3. Representations and Warranties of Each Purchaser. Each Purchaser, severally and
not jointly, hereby represents and warrants to the Company, as of the date hereof and as of the
Closing Date (except to the extent made only as of a specified date, in which case as of such
date), that, with respect to such Purchaser:
(a) Organization and Authority. Except as Previously Disclosed by a
Purchaser or as set forth on such Purchaser’s signature page, Purchaser is a United
States of America citizen, or is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization within the United States of
America, is duly qualified to do business and is in good standing in all jurisdictions
where its ownership or leasing of property or the conduct of its business requires it to
be so qualified and where failure to be so qualified would be reasonably expected to
materially and adversely affect Purchaser’s ability to perform its obligations under this
Agreement or consummate the transactions contemplated hereby on a timely basis, and
Purchaser has the corporate or other power and authority and governmental authorizations
to own its properties and assets and to carry on its business as it is now being
conducted.
(b) Authorization.
(1) Purchaser has the corporate or other power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution, delivery and
performance of this Agreement by Purchaser and the consummation of the transactions
contemplated hereby have been duly authorized by Purchaser’s board of directors,
general partner or managing members, investment committee
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or other authorized persons, as the case may be (if such authorization is required), and no further
approval or authorization by any of its partners or other equity owners, as the case
may be, is required. This Agreement has been duly and validly executed and
delivered by Purchaser and assuming due authorization, execution and delivery by the
Company, is a valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms (except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and similar laws of general applicability relating to or affecting creditors’ rights
or by general equity principles).
(2) Neither the execution, delivery and performance by Purchaser of this
Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance by Purchaser with any of the provisions hereof, will (A) violate,
conflict with, or result in a breach of any provision of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration of, or result in
the creation of any Lien upon any of the properties or assets of Purchaser under any
of the terms, conditions or provisions of (i) its certificate of limited partnership
or partnership agreement or other organization or governing documents or (ii) any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Purchaser is a party or by which it may be bound,
or to which Purchaser or any of the properties or assets of Purchaser may be
subject, or (B) subject to compliance with the statutes and regulations referred to
in the next paragraph, and assuming the accuracy of the representations and
warranties of the Company and the other Purchasers and the performance of the
covenants and agreements of the Company and the other Purchasers contained herein,
violate any law, statute, ordinance, rule or regulation, permit, concession, grant,
franchise or any judgment, ruling, order, writ, injunction or decree applicable to
Purchaser or any of its properties or assets except in the case of clauses (A)(ii)
and (B), for such violations, conflicts and breaches as would not reasonably be
expected to materially and adversely affect Purchaser’s ability to perform its
respective obligations under this Agreement or consummate the transactions
contemplated hereby on a timely basis.
(3) Assuming the accuracy of the other representations and warranties of the
Company and the performance of the covenants and agreements of the Company contained
herein, no notice to, registration, declaration or filing with, exemption or review
by, or authorization, order, consent or approval of, any Governmental Entity, nor
expiration or termination of any statutory waiting period, is necessary for
Purchaser to purchase the Securities to be acquired at the Closing pursuant to this
Agreement.
(4) Assuming the accuracy of the other representations and warranties of the
Company and the other Purchasers, and the performance of the covenants and
agreements of the Company contained herein, solely as a result of the Purchaser’s
purchase of shares of Convertible Preferred Stock hereunder, the
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Purchaser is not subject to the FDIC Policy Statement and has no reason to believe it will become
subject to the FDIC Policy Statement or subject the Company or the Bank to the FDIC
Policy Statement.
(c) Purchase for Investment. Purchaser acknowledges that the Securities
have not been registered under the Securities Act or under any state securities laws.
Purchaser (1) is acquiring the Securities pursuant to an exemption from registration
under the Securities Act solely for investment with no present intention to distribute
any of the Securities to any person, (2) will not sell or otherwise dispose of any of the
Securities, except in compliance with the registration requirements or exemption
provisions of the Securities Act and any other applicable securities laws, (3) is an
“accredited investor” as defined in SEC Rule 501 and/or a “qualified institutional buyer”
under SEC Rule 144A, (4) has reviewed the risk factors included in the Company 10-K and
in the offering materials, and (5) has such knowledge and experience in financial and
business matters and in investments of this type, including knowledge of the Company,
that it is capable of evaluating the merits and risks of the Company and of its
investment in the Securities and of making an informed investment decision. Purchaser is
not a registered broker-dealer under Section 15 of the Exchange Act or an unregistered
broker-dealer engaged in the business of being a broker-dealer.
(d) Ownership. As of the date hereof, Purchaser and any of its Affiliates
(other than (i) any portfolio company with respect to which Purchaser is not the party
exercising control over investment decisions and (ii) if Purchaser is an Institutional
Investor, its non-controlled Affiliates) are currently the owners of record or the
Beneficial Owners of shares of Common Stock or securities convertible into or
exchangeable for Common Stock in the amounts shown on Schedule A to Purchaser’s
signature page hereto. For purposes of this Agreement, Purchaser shall be considered an
“Institutional Investor” if (i) Purchaser is a registered investment company
pursuant to the Investment Company Act of 1940, as amended, serves as a common investment
advisor to multiple investment advisory accounts on behalf of which Securities are being
purchased hereunder and which accounts are set forth on Schedule A to Purchaser’s
signature page hereto or is one of multiple investment advisory accounts with a common
investment advisor on behalf of which Securities are being purchased hereunder and which
accounts are set forth on Schedule A to Purchaser’s signature page hereto and
(ii) the Company has checked the appropriate box on Purchaser’s signature page hereto
indicating that Purchaser is an “Institutional Investor” for purposes of this Agreement.
(e) Review of Information and Consultation with Advisors. Purchaser has,
either alone or through its representatives:
(1) consulted with its own legal, regulatory, tax, business, investment,
financial and accounting advisers in connection herewith to the extent it has deemed
necessary;
(2) had a reasonable opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, the officers and
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representatives of the Company and the Bank concerning the Company’s and the Bank’s financial condition and
results of operations, the business plan for the Company and the Bank, all employment agreements and benefit plans and other
contractual arrangements among the Company, the Bank and their respective management
teams, the terms and conditions of the private placement of the Securities, the
Acquisition and any additional relevant information that the Company possesses, and
any such questions have been answered to its satisfaction;
(3) had the opportunity to review and evaluate the following in connection with
its investment decision with respect to the Securities: (A) all publicly available
records and filings concerning the Company and the Bank, including the Company 10-K,
as well as all other documents, records, filings, reports, agreements and other
materials provided by the Company regarding its and the Bank’s business, operations
and financial condition sufficient to enable it to evaluate its investment; (B) the
investor presentation materials (as supplemented from time to time) including Risk
Factors, Term Sheet, Capital Offering — Select Q&A (collectively, the “Offering
Materials”) that summarizes this offering of Securities and the Acquisition; (C)
the publicly available records and filings concerning the Target Institution and is
generally familiar with the FDIC’s form of purchase and assumption transactions
similar to the Acquisition (the “P&A Agreements”); and (D) this Agreement,
the Preferred Stock Articles of Amendment attached as Exhibit A hereto, the
Registration Rights Agreement attached as Exhibit B hereto, the Escrow
Agreement attached as Exhibit C hereto, and all other exhibits, schedules
and appendices attached hereto and thereto and incorporated by reference in any of
the foregoing (collectively, the “Private Placement Documents”); and
(4) made its own investment decisions based upon its own judgment, due
diligence and advice from such advisers as it has deemed necessary and not upon any
view expressed by any other Person, including, without limitation, the Placement
Agent. Neither such inquiries nor any other due diligence investigations conducted
by such Purchaser or its advisors or representatives, if any, shall modify, amend or
affect the Purchaser’s right to rely on the Company’s representations and warranties
contained herein. Purchaser understands that its investment in the Securities
involves a high degree of risk and it is able to afford a complete loss of such
investment.
(f) No Reliance. Purchaser acknowledges that the information in the
Offering Materials is as of the date thereof and may not contain all of the terms and
conditions of the offering and sale of the Securities and the Acquisition, and
understands and acknowledges that it is Purchaser’s responsibility to, and it has
conducted its own independent investigation and evaluation of the Company and its
Significant Subsidiaries, the Target Institution and the Acquisition, including without
limitation, (i) the planned future operations of the Company after completion of the
Acquisition, if applicable, and (ii) the Company’s existing management team and the
proposed new members of management that will operate and manage the Company
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following the completion of the Acquisition. Purchaser is not relying upon, and has not relied upon,
any advice, statement, representation or warranty made by any Person by or on behalf of
the Company, including, without limitation, the Placement Agent, except for the express
statements, representations and warranties of the Company made or contained in this
Agreement and the other Private Placement Documents. Furthermore, Purchaser acknowledges
that: (A) the Placement Agent has not performed any due diligence review on behalf of
Purchaser; (B) nothing in this Agreement or any other materials presented by or on behalf
of the Company to Purchaser in connection with the purchase of the Securities constitutes
legal, tax or investment advice and such Purchaser has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Securities; and (C) Purchaser received or had access
to all of the information Purchaser deemed necessary in order to make its decision to
invest in the Securities. Purchaser acknowledges and understands that there is no
representation or warranty being made to Purchaser as to the suitability or sufficiency
of information provided by the FDIC regarding the Target Institution or the assets and
liabilities of the Target Institution to be acquired in the Acquisition, to the extent
that any such information is made available. The Placement Agent and its affiliates (and
their respective officers, directors, employees, agents, advisors, attorneys and
consultants), are third-party beneficiaries to this Section 2.3(f). For purposes of this
Agreement, “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization or
similar entity and a government or any department or agency thereof.
(g) Reliance on Exemptions. Purchaser understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and regulations and that
the Company is relying in part upon the truth and accuracy of, and Purchaser’s compliance
with, the representations, warranties, agreements, acknowledgments and understandings of
Purchaser set forth herein in order to determine the availability of such exemptions and
the eligibility of Purchaser to acquire the Securities.
(h) Knowledge as to Conditions. Purchaser does not know of any reason why
any regulatory approvals and, to the extent necessary, any other approvals,
authorizations, filings, registrations, and notices required or otherwise a condition to
the consummation by it of the transactions contemplated by this Agreement will not be
obtained.
(i) Brokers and Finders. Neither Purchaser nor its Affiliates, any of their
respective officers, directors, employees or agents has employed any broker or finder
or incurred any liability for any financial advisory fees, brokerage fees,
commissions or finder’s fees, and no broker or finder has acted directly or indirectly
for Purchaser, in connection with this Agreement or the transactions contemplated hereby,
in each case, whose fees the Company would be required to pay.
(j) No General Solicitation. Purchaser is not purchasing the Securities as
a result of any advertisement, article, notice or other communication regarding the
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Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other general advertisement.
(k) No Governmental Review; Securities Are Not Deposits and Are Not Insured.
Purchaser understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or endorsement
of the Securities or the fairness or suitability of the investment in the Securities nor
have such authorities passed upon or endorsed the merits of the offering of the
Securities. PURCHASER UNDERSTANDS AND AGREES THAT THE SECURITIES ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A DEPOSITORY INSTITUTION AND ARE NOT INSURED
BY THE FDIC, INCLUDING THE FDIC’S DEPOSIT INSURANCE FUND, OR ANY OTHER GOVERNMENTAL
AGENCY, AND THAT THE SECURITIES ARE SUBJECT TO RISK OF LOSS.
(l) Investment Risk. Purchaser understands that (i) its investment in the
Securities involves a high degree of risk, (ii) no representation is being made as to the
business or prospects of the Company or the Bank after completion of the Acquisition or
the future value of the Securities, and (iii) no representation is being made as to any
projections or estimates delivered to or made available to Purchaser (or any of its
affiliates or representatives) of the Company’s or the Bank’s future assets, liabilities,
stockholders’ equity, regulatory capital ratios, net interest income, net income or any
component of any of the foregoing or any ratios derived therefrom.
(m) Residency. Purchaser has, if an entity, its principal place of business
or, if an individual, its primary residence, in the jurisdiction in the United States
indicated below Purchaser’s name on the signature pages hereto, except as indicated on
such signature page.
ARTICLE III
COVENANTS
3.1. Filings; Other Actions.
(a) Each Purchaser, with respect to itself only, on the one hand, and the Company,
on the other hand, will cooperate and consult with the other and use reasonable best efforts to provide all necessary and customary information and data,
to prepare and file all necessary and customary documentation, to provide evidence of
non-control of the Company and the Bank, including executing and delivering to the
applicable Governmental Entities passivity and disassociation commitments and commitments
not to act in concert with respect to the Company or the Bank (the “Commitments”)
in the forms customary for transactions similar to the transaction contemplated hereby,
and to effect all necessary and customary applications, notices, petitions, filings and
other documents, and to obtain all necessary and customary permits, consents, orders,
approvals and authorizations of, or any exemption by, all third parties and Governmental
Entities, and the expiration or termination of any
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applicable waiting period, in each case, (i) necessary or advisable to consummate the transactions contemplated by this
Agreement, and to perform the covenants contemplated by this Agreement, including the
Agreements attached as Exhibits hereto and (ii) with respect to each Purchaser, to the
extent typically provided by such Purchaser to such third parties or Governmental
Entities, as applicable, under such Purchaser’s policies consistently applied and subject
to such confidentiality requests as such Purchaser may reasonably seek. Notwithstanding
the immediately preceding sentence, the Purchaser shall not be required to provide
information on its investors solely in their capacities as limited partners or other
similar passive equity investors, and shall be entitled to request confidential treatment
from any Governmental Entity and not disclose to the Company any information that is
confidential and proprietary to the Purchaser. Each party shall execute and deliver both
before and after the Closing such further certificates, agreements, documents and other
instruments and take such other actions as the other parties may reasonably request to
consummate or implement such transactions or to evidence such events or matters, subject,
in each case, to clauses (i) and (ii) of the first sentence of this Section 3.1(a). Each
Purchaser and the Company will have the right to review in advance, and to the extent
practicable each will consult with the other, in each case subject to applicable laws
relating to the exchange of information, all the information relating to such other
party, and any of their respective Affiliates, which appears in any filing made with, or
written materials submitted to, any third party or any Governmental Entity in connection
with the transactions to which it will be party contemplated by this Agreement; provided,
however, that (i) no Purchaser shall have the right to review any such information
relating to another Purchaser and (ii) a Purchaser shall not be required to disclose to
the Company any information that is confidential and proprietary to such Purchaser. In
exercising the foregoing right, each of the parties hereto agrees to act reasonably and
as promptly as practicable in light of the currently anticipated date for bidding on the
Target Institution of April 8, 2010. Each party hereto agrees to keep the other party
apprised of the status of matters referred to in this Section 3.1(a). Each Purchaser
shall promptly furnish the Company, and the Company shall promptly furnish each
Purchaser, to the extent permitted by applicable law, with copies of written
communications received by it or its Subsidiaries from, or delivered by any of the
foregoing to, any Governmental Entity in respect of the transactions contemplated by
this Agreement.
(b) The Company shall call a meeting of its stockholders, to be held as promptly as
practicable following the Closing, and in no event later than 75 days after the Closing,
to seek the Stockholder Approvals proposals to (1) approve the Conversion of the
Convertible Preferred Stock and the related issuance of Common Stock for purposes of Rule
5635 of the Nasdaq Stock Market Rules and (2) to amend the Articles of Incorporation to
increase the number of authorized shares of Common Stock to permit the Conversion in full
and provide available authorized but unissued shares for general corporate purposes. The
Board of Directors of the Company shall recommend approval of such proposals. In
connection with such meeting, the Company shall promptly prepare (and each Purchaser will
reasonably cooperate with the Company to prepare) and file (but in no event more than
twenty business days after the Closing Date) with the SEC a preliminary proxy statement
or an amended
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preliminary proxy statement, shall use its reasonable best efforts to
respond to any comments of the SEC or its staff and to cause a definitive proxy statement
related to such stockholders’ meeting to be mailed to the Company’s stockholders not more
than five business days after clearance thereof by the SEC, and shall use its reasonable
best efforts to solicit proxies for such stockholder approval. If at any time prior to
such stockholders’ meeting there shall occur any event that is required to be set forth
in an amendment or supplement to the proxy statement, the Company shall as promptly as
practicable prepare and mail to its stockholders such an amendment or supplement. Each
Purchaser and the Company agrees promptly to correct any information provided by it or on
its behalf for use in the proxy statement if and to the extent that such information
shall have become false or misleading in any material respect, and the Company shall as
promptly as practicable prepare and mail to its stockholders an amendment or supplement
to correct such information to the extent required by applicable laws and regulations.
In the event that the Stockholder Approvals are not obtained at such stockholders’
meeting, the Company shall include proposals to approve (and the Board of Directors shall
unanimously recommend approval of) such Stockholder Approvals proposals at a meeting of
its stockholders no less than once in each subsequent three-month period beginning on the
date of such stockholders meeting until such approval is obtained. The Preferred Stock
Articles of Amendment contain a reduction in the Conversion Price, as defined therein,
for failure to obtain the Stockholder Approvals timely pursuant to this Section 3.1 and
the Preferred Stock Articles of Amendment.
(c) Each Purchaser, on the one hand, agrees to furnish the Company, and the Company,
on the other hand, agrees, upon request, to furnish to each Purchaser, all information
concerning itself, its Affiliates, directors, officers, partners and stockholders and
such other matters as may be reasonably necessary or advisable in
connection with the proxy statement in connection with any such stockholders’
meeting at which the Stockholder Approvals are sought.
3.2. Access, Information and Confidentiality.
(a) Each Purchaser confirms that it is aware that United States securities laws may
prohibit any person who has material non-public information about a company from
purchasing or selling securities of such company or from communicating such information
to any other person under circumstances in which it is reasonably foreseeable that such
person may purchase or sell such securities. After the Closing, the Company will not
intentionally provide Purchaser with material non-public information without Purchaser’s
prior consent. The Parties hereby reaffirm their existing Confidentiality Agreement,
which shall continue in full force and effect. To the extent holders of more than 5% of
the Company’s outstanding Common Stock desire additional information about the Company
following the Closing Date and execute and deliver confidentiality agreements that
provide, among other things, for compliance with the securities laws, the Company will
discuss non-public information regarding the Company with such Persons.
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(b) Each party hereto will hold, and will cause its respective Affiliates and its
and their respective directors, officers, employees, agents, consultants and advisors to
hold, in strict confidence, unless disclosure to a regulatory authority is necessary or
appropriate in connection with any necessary regulatory approval, examination or
inspection or unless disclosure is required by judicial or administrative process or, in
the written opinion of its counsel, by other requirement of law or the applicable
requirements of any regulatory agency or relevant stock exchange, all non-public records,
books, contracts, instruments, computer data and other data and information
(collectively, “Information”) concerning the other party hereto furnished to it
by or on behalf of such other party or its representatives pursuant to this Agreement
(except to the extent that such information can be shown to have been (1) previously
known by such party on a non-confidential basis, (2) in the public domain through no
fault of such party or (3) later lawfully acquired from other sources by such party), and
Purchaser shall not release or disclose such Information to any other person, except its
auditors, attorneys, financial advisors, other consultants and advisors.
(c) Except as may have otherwise been previously agreed with the Company, Purchasers
may, as permitted by the Commitments and applicable laws, rules and regulations, talk
with other Purchasers regarding the Company, but in no event shall the Purchasers act in
concert inconsistent with the BHC Act, the CIBC Act or the policy statements of any
Governmental Entity asserting jurisdiction over the Company, the Bank or any Purchaser,
or where such activity would reasonably be likely to limit the Company’s or the Bank’s activities, including any opportunities
to bid on failed FDIC insured institutions or other assets or liabilities.
3.3. Waiver of Change-of-Control Rights. The Company shall use its reasonable best
efforts to promptly obtain waivers of all Employee Change-of-Control Rights. For purposes of this
Section 3.3, “Employee Change-of-Control Rights” means any right of a director, officer or
employee of the Company that arises, vests, accelerates or becomes exercisable (in each case, by
contract or otherwise) as a result of the purchase of securities from the Company by any Purchaser
pursuant to this Agreement.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1. Transfer Restrictions.
(a) Notwithstanding any other provision of this Article IV, each Purchaser covenants
that the Securities may be disposed of only pursuant to an effective registration
statement under, and in compliance with the requirements of, the Securities Act, or
pursuant to an available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and in compliance with any applicable
state, federal or foreign securities laws. In connection with any transfer of the
Securities other than (i) pursuant to an effective registration statement, (ii) to the
Company or (iii) pursuant to Rule 144 (provided that the transferor provides the Company
with reasonable assurances (in the form of seller and broker representation
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letters) that
such securities may be sold pursuant to such rule), the Company may require the
transferor thereof to provide to the Company and the Transfer Agent, at the transferor’s
expense, an opinion of counsel selected by the transferor and reasonably acceptable to
the Company and the Transfer Agent, the form and substance of which opinion shall be
reasonably satisfactory to the Company and the Transfer Agent, to the effect that such
transfer does not require registration of such transferred Securities under the
Securities Act. As a condition of transfer (other than pursuant to clauses (i), (ii) or
(iii) of the preceding sentence), any such transferee shall agree in writing to be bound
by the terms of this Agreement and shall have the rights of a Purchaser under this
Agreement and the Registration Rights Agreement with respect to such transferred
Securities.
(b) Hedging. Each Purchaser covenants that it will not knowingly make any
sale, transfer, or other disposition of any Securities, or engage in hedging transactions
with respect to such Securities, in violation of the Securities Act (including Regulation
S) or the Exchange Act.
4.2. Legend. (a) Each Purchaser agrees that all certificates or other instruments,
if any, representing the Securities subject to this Agreement will bear a legend and with respect
to Securities held in book-entry form, the Transfer Agent will record a legend on the share
register substantially to the following effect:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A
BANK AND ARE NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER OF THE CORPORATION WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. SUCH REQUEST SHOULD BE ADDRESSED TO THE CORPORATION OR THE TRANSFER AGENT.
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT RELATING THERETO UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER
RESTRICTIONS SET FORTH IN AN INVESTMENT AGREEMENT, EFFECTIVE AS OF THE EFFECTIVENESS DATE
THEREOF,
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COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AT THE
CORPORATION’S PRINCIPAL EXECUTIVE OFFICES.
(b) The restrictive legend set forth in Section 4.2(a) above shall be removed and
the Company shall issue a certificate without such restrictive legend or any other
restrictive legend to the holder of the applicable Securities upon which it is stamped or
issue to such holder by electronic delivery at the applicable balance account at DTC, if
(i) such Securities are registered for resale under the Securities Act, (ii) such
Securities are sold or transferred pursuant to Rule 144 (if the transferor is not an
Affiliate of the Company), or (iii) such Securities are eligible for sale under Rule 144,
without the requirement for the Company to be in compliance with the current public
information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such
securities and without volume or manner-of-sale restrictions. Following the earlier of
(i) the effective date of the registration statement registering such Securities for
resale or (ii) Rule 144 becoming available for the resale of Securities, without the
requirement for the Company to be in compliance with the current public information
required under 144(c)(1) (or Rule 144(i)(2), if applicable) as to the Securities and
without volume or manner-of-sale restrictions, the Company shall instruct the Transfer
Agent to remove the legend from the Securities and shall cause its counsel to issue any
legend removal opinion required by the Transfer Agent. Any fees (with respect to the
Transfer Agent, Company counsel or otherwise) associated with the issuance of such
opinion or the removal of such legend shall be borne by the Company. If a legend is no
longer required pursuant to the foregoing, the Company will no later than three (3)
Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent
(with notice to the Company) of a legended certificate or instrument representing such
Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise
in form necessary to affect the reissuance and/or transfer) and a representation letter
to the extent required by Section 4.1, (such third Trading Day, the “Legend Removal
Date”) deliver or cause to be delivered to such Purchaser a certificate or instrument
(as the case may be) representing such Securities that is free from all restrictive
legends. The Company may not make any notation on its records or give instructions to
the Transfer Agent that enlarge the restrictions on transfer set
forth in this Section 4.2(b). Certificates for Securities free from all restrictive
legends may be transmitted by the Transfer Agent to the Purchasers by crediting the
account of the Purchaser’s prime broker with DTC as directed by such Purchaser.
(c) Each Purchaser hereunder acknowledges its primary responsibilities under the
Securities Act and accordingly will not sell or otherwise transfer the Securities or any
interest therein without complying with the requirements of the Securities Act and the
rules and regulations promulgated thereunder. Except as otherwise provided below, while
the above-referenced registration statement remains effective, each Purchaser hereunder
may sell the Securities in accordance with the plan of distribution contained in the
registration statement and if it does so it will comply therewith and with the related
prospectus delivery requirements unless an exemption therefrom is available or unless the
Securities are sold pursuant to Rule 144. Each Purchaser, severally and not jointly with
the other Purchasers, agrees that if it is notified by the Company in writing at any time
that the registration statement
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registering the resale of the Securities is not effective
or that the prospectus included in such registration statement no longer complies with
the requirements of Section 10 of the Securities Act, the Purchaser will refrain from
selling such Securities until such time as the Purchaser is notified by the Company that
such registration statement is effective or such prospectus is compliant with Section 10
of the Exchange Act, unless such Purchaser is able to, and does, sell such Securities
pursuant to an available exemption from the registration requirements of Section 5 of the
Securities Act.
4.3. Reservation for Issuance. The Company will seek authorization in the Stockholder
Approval of additional shares of Common Stock and will reserve from such newly authorized shares of
Common Stock, that number of shares of Common Stock sufficient for issuance upon exercise or
conversion of all outstanding shares of Convertible Preferred Stock, and such other shares of
Common Stock the Company believes it may need if available for general corporate purposes.
4.4. [Reserved]
4.5. Indemnity.
(a) The Company agrees, subject to applicable law, to indemnify and hold harmless
each Purchaser and its Affiliates and each of their respective officers, directors,
partners, members, employees and agents (and any other persons with a functionally
equivalent role of a person holding such titles notwithstanding a lack of such title or
any other title), and each person who controls each Purchaser within the meaning of the
Exchange Act and the rules and regulations promulgated thereunder, to the fullest extent
lawful, from and against any and all actions, suits, claims, proceedings, costs, losses,
liabilities, damages, expenses (including reasonable attorneys’ fees and disbursements),
amounts paid in settlement and other costs (collectively, “Losses”) arising out
of or resulting from (1) any inaccuracy in or breach of the Company’s representations or
warranties in this Agreement or (2) the Company’s breach of agreements or covenants made
by the Company in this Agreement (other than any Losses attributable to any breach of
this
Agreement by Purchaser) or (3) any action, suit, claim, proceeding or investigation
by any Governmental Entity, stockholder of the Company or any other person (other than
the Company) relating to this Agreement or the transactions contemplated hereby (other
than any Losses attributable to the acts, errors or omissions on the part of Purchaser,
but not including the transactions contemplated hereby, and any Losses for which each
Purchaser is obligated under Section 4.5(b)).
(b) [Reserved]
(c) A party entitled to indemnification hereunder (each, an “Indemnified
Party”) shall give written notice to the party indemnifying it (the “Indemnifying
Party”) of any claim with respect to which it seeks indemnification promptly after
the discovery by such Indemnified Party of any matters giving rise to a claim for
indemnification; provided that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations under this
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Section 4.5 unless and only to the extent that the Indemnifying Party shall have been
actually prejudiced by the failure of such Indemnified Party to so notify such party.
Such notice shall describe in reasonable detail each such claim. In case any such
action, suit, claim or proceeding is brought against an Indemnified Party, the
Indemnified Party shall be entitled to hire, at its own expense, separate counsel and
participate in the defense thereof; provided that the Indemnifying Party shall be
entitled to assume and conduct the defense thereof, unless the counsel to the Indemnified
Party advises the Indemnifying Party in writing that such claim involves a conflict of
interest (other than one of a monetary nature) that would reasonably be expected to make
it inappropriate for the same counsel to represent both the Indemnifying Party and the
Indemnified Party, in which case, the Indemnified Party shall be entitled to retain its
own counsel at the cost and expense of the Indemnifying Party (except that the
Indemnifying Party shall only be liable for the legal fees and expenses of one law firm
for all Indemnified Parties, taken together with respect to any single action or group of
related actions). If the Indemnifying Party assumes the defense of any claim, all
Indemnified Parties shall thereafter deliver to the Indemnifying Party copies of all
notices and documents (including court papers) received by the Indemnified Party relating
to the claim, and each Indemnified Party shall cooperate in the defense or prosecution of
such claim. Such cooperation shall include the retention and (upon the Indemnifying
Party’s request) the provision to the Indemnifying Party of records and information that
are reasonably relevant to such claim, and making persons available on a mutually
convenient basis to provide additional information and explanation of any material
provided hereunder. The Indemnifying Party shall not be liable for any settlement of any
action, suit, claim or proceeding effected without its written consent, unless the
Indemnifying Party is unconditionally and irrevocably released from all such claims,
actions, suits and proceedings and Losses; provided that the Indemnifying Party shall not
unreasonably withhold or delay its consent. The Indemnifying Party further agrees that
it will not, without the Indemnified Party’s prior written consent (which shall not be
unreasonably withheld or delayed), settle or compromise any claim or consent to entry of
any judgment in respect thereof in any pending or threatened action, suit, claim or
proceeding in respect of which indemnification has been sought hereunder unless such
settlement or compromise includes an unconditional release of such Indemnified Party
from all liability arising out of such action, suit, claim or proceeding and does not
involve any prospective relief against such Indemnified Party.
(d) The Company shall not be required to indemnify the Indemnified Parties pursuant
to Section 4.5(a)(1), (1) with respect to any claim for indemnification if the amount of
Losses with respect to such claim (including a series of related claims) are less than
$250,000 (Losses less than such amount being referred to as a “De Minimis Claim”)
and (2) unless and until the aggregate amount of all Losses incurred with respect to all
claims (other than De Minimis Claims) pursuant to 4.5(a)(1) exceed $1,000,000 (the
“Threshold Amount”), in which event the Company shall be responsible for all
Losses including those below the Threshold Amount. The cumulative indemnification
obligation of the Company to any Purchaser and all of the Indemnified Parties affiliated
with (or whose claims are permitted by virtue of their relationship with) such Purchaser
for inaccuracies in or breaches of representations and
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warranties, shall in no event
exceed the Purchase Price attributable to such Purchaser plus an amount attributable to
the out-of-pocket cost of litigation, if any, reasonably incurred by such Purchaser and
Indemnified Parties, including the reasonable fees and expenses of one counsel who shall
represent both such Purchaser and such Indemnified Parties.
(e) Any claim for indemnification pursuant to this Section 4.5 for breach of any
representation or warranty can only be brought on or prior to the second anniversary of
the Closing Date; provided that if notice of a claim for indemnification pursuant to this
Section 4.5 for breach of any representation or warranty is brought prior to the end of
such period, then the obligation to indemnify in respect of such breach shall survive as
to such claim, until such claim has been finally resolved.
(f) No party to this Agreement (or any of its Affiliates) shall, in any event, be
liable or otherwise responsible to any other party (or any of its Affiliates) for any
punitive damages of such other party (or any of its Affiliates) arising out of or
relating to this Agreement or the performance or breach hereof.
(g) No investigation of the Company by a Purchaser, or by the Company of a
Purchaser, whether prior to or after the date hereof, shall limit any Indemnified Party’s
exercise of any right hereunder or be deemed to be a waiver of any such right.
(h) Any indemnification payments pursuant to this Section 4.5 shall be treated as an
adjustment to the Purchase Price for the Securities for U.S. federal income and
applicable state and local Tax purposes, unless a different treatment is required by
applicable law.
4.6. Exchange Listing. The Company shall promptly use its reasonable best efforts to
cause the shares of Common Stock reserved for issuance pursuant to the conversion of the
Convertible Preferred Stock to be approved for listing on the Nasdaq Global Select Market,
including by submitting prior to the Closing supplemental listing materials with the Nasdaq Global
Select Market with respect to the shares of Common Stock reserved for issuance pursuant
to the conversion of the Convertible Preferred Stock, subject to official notice of issuance,
and upon receipt of the Stockholder Approvals, as promptly as practicable, and in any event before
the Closing if permitted by the rules of the Nasdaq Global Select Market.
4.7. Tax Treatment of Convertible Preferred Stock. The Company covenants not to treat
the Convertible Preferred Stock as preferred stock for purposes of Section 305 of the Internal
Revenue Code of 1986, as amended (the “Code”), except as otherwise required by applicable
law.
ARTICLE V
CONDITIONS TO CLOSING; TERMINATION
5.1. Conditions to Each Purchaser’s Obligations. The obligations of each Purchaser to
purchase and pay for the Securities to be purchased by such Purchaser are subject to the
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satisfaction or waiver by such Purchaser, on or before such Closing Date, of the following
conditions:
(a) The representations and warranties contained in Section 2.2 shall be true,
complete and correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, except to the extent
such representations and warranties expressly relate to any earlier date (in which case
such representations and warranties shall be accurate on and as of such date), and an
authorized officer of the Company shall have certified such compliance to the Purchasers
in writing on behalf of the Company.
(b) The Company shall have performed and complied in all material respects with all
agreements contained herein required to be performed or complied with by it prior to or
at the Closing Date, and an authorized officer of the Company shall have certified such
compliance to the Purchasers in writing on behalf of the Company.
(c) The Company shall have executed and delivered, effective as of the Closing, the
Escrow Agreement and the Registration Rights Agreement in the forms attached as
Exhibit B and Exhibit C, respectively.
(d) The Purchaser shall have received an opinion of counsel, dated as of the Closing
Date and addressed to the Purchaser, in such form and substance as are customary for
transactions of this type.
(e) The Purchaser shall have received the shares of Convertible Preferred Stock
being purchased at the Closing, and otherwise shall have received evidence from the
Transfer Agent that it had been directed to issue and deliver shares to the Purchasers.
(f) Each Purchaser shall not have been made subject to the FDIC Policy Statement
solely as a result of its purchase of shares of Convertible Preferred Stock hereunder.
(g) With respect to the purchase of the Contingent Shares, the Bank shall have been
named by the FDIC as the winning bidder for the Acquisition of the Target Institution,
and the conditions to the release of the aggregate Purchase Price to the Company from
Escrow pursuant to the Escrow Agreement shall have been satisfied.
(h) With respect to a purchase of only the Non-Contingent Shares, the Company shall
notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement or otherwise shall
have been satisfied. This notice shall be given within five (5) business days of the
occurrence of the: (i) receipt of written notice from the FDIC that the Bidder will not
be permitted as a final matter to enter a Bid (“Notice of Non-Qualification”),
(ii) receipt of a notice that the Bidder is not named by the FDIC as the winning bidder
for the Target Institution’s Assets and Liabilities (a “Notice of
-31-
Higher Bid”),
(iii) the Company or the Bank determines not to submit a Bid or failed to submit a Bid,
(iv) receipt of a Delay Notice or (v) failure of the Acquisition to close by April 30,
2010.
(i) The Company shall have received subscriptions to shares of Convertible Preferred
Stock aggregating $250 million.
(j) The purchase of such Securities shall not (i) cause Purchaser or any of its
affiliates to violate any bank regulation, (ii) except in the case of CapGen, require
such Purchaser or any of its affiliates to file a prior notice with the Board of
Governors of the Federal Reserve System (the “Federal Reserve”) or its delegee
under the CIBC Act or the BHC Act or obtain the prior approval of any bank regulator or
(iii) except in the case of CapGen, cause such Purchaser, together with any other person
whose Company securities would be aggregated with such Purchaser’s Company securities for
purposes of any bank regulation or law, to collectively be deemed to own, control or have
the power to vote securities which (assuming, for this purpose only, full conversion
and/or exercise of such securities by the Purchaser) would represent 10.0% or more of the
voting securities of the Company outstanding at such time.
(k) The Company shall not have been notified by the FDIC that the Company is subject
to the FDIC Policy Statement with respect to the Acquisition of the Target Institution
and that, as a result, the Purchaser will become subject to the FDIC Policy Statement
solely as a result of the purchase of the shares of Convertible Preferred Stock
hereunder, assuming the accuracy of the Purchaser’s representation, warranties and
covenants.
5.2. Conditions to Company’s Obligations. The obligations of the Company to issue and
sell the Securities to each individual Purchaser and to perform its obligations under this
Agreement with respect to such Purchaser are subject to the satisfaction by such Purchaser, on or
before such Closing Date, of the following conditions:
(a) The representations and warranties contained in Section 2.3 shall be true,
complete and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date, except to
the extent such representations and warranties expressly relate to any earlier date (in
which case such representations and warranties shall be accurate on and as of such date),
and an authorized officer of such Purchaser shall have certified such compliance to the
Company in writing on behalf of such Purchaser.
(b) Such Purchaser shall have performed and complied in all material respects with
all agreements contained herein required to be performed or complied with by it prior to
or at the Closing Date, and an authorized officer of such Purchaser shall have certified
such compliance to the Company in writing on behalf of such Purchaser.
(c) With respect to the purchase of the Contingent Shares, the Bank shall have been
named by the FDIC as the winning bidder for the Acquisition of the Target
-32-
Institution,
and the conditions to the release of the aggregate Purchase Price to the Company from
Escrow pursuant to the Escrow Agreement shall have been satisfied.
(d) With respect to a purchase of only the Non-Contingent Shares, the Company shall
notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement or otherwise shall
have been satisfied. This notice shall be given within five (5) business days of the
occurrence of the: (i) receipt of a Notice of Non-Qualification, (ii) receipt of a Notice
of Higher Bid, (iii) the Company or the Bank determines not to submit a Bid or failed to
submit a Bid, (iv) receipt of a Delay Notice or (v) failure of the Acquisition to close
by April 30, 2010.
(e) The Company shall not have been notified by the FDIC that the Company is subject
to the FDIC Policy Statement with respect to the Acquisition of the Target Institution
and that, as a result, any Purchaser hereunder will become subject to the FDIC Policy
Statement solely as a result of the purchase of the shares of Convertible Preferred Stock
hereunder, assuming the accuracy of each Purchaser’s representation, warranties and
covenants.
5.3. Release of Escrow Funds. Upon the occurrence of the events specified in Section
5(b) of the Escrow Agreement, all monies held by the Escrow Agent pursuant to the Escrow Agreement
other than the Purchase Price for the Non-Contingent Shares shall be released and returned to the
respective Purchasers as provided in the Escrow Agreement. The Escrow Funds representing the
Purchase Price for the Non-Contingent Shares shall be released as provided in the Escrow Agreement.
5.4. Termination. The Company and each Purchaser’s obligations under this agreement
may be terminated by the mutual written consent in writing of such Purchaser and the Company.
5.5. Rescission. In the event that, following the Closing of the Contingent Shares,
the Acquisition is not consummated on the Closing Date, then the issuance of such Contingent
Shares shall be void ab initio, and the Company shall promptly notify and return the Purchase
Price paid for such Contingent Shares to the respective Purchasers of such Contingent Shares as
specified on each such Purchaser’s signature page hereto. Promptly following such actions
specified in the first sentence of this Section, the Company shall provide written notice to the
Transfer Agent that such purchase is void and of no effect and that the share issuance instructions
with respect to the Purchasers of the Contingent Purchasers shall be null and void, unless any
Purchaser received certificates, in which case such Purchaser shall return to the Company for
cancellation the certificates for its Contingent Shares concurrently with the Company returning
promptly to such Purchaser its Purchase Price with respect to the Contingent Shares by wire
transfer of immediately available funds to a bank account designated by such Purchaser. This
Section 5.5 shall not affect the parties’ obligations to pay for and issue Non-Contingent Shares.
-33-
ARTICLE VI
MISCELLANEOUS
6.1. Survival. Each of the representations and warranties set forth in this Agreement
shall survive the Closing under this Agreement but only for two years following the Closing Date
(or until final resolution of any claim or action arising from the breach of any such
representation and warranty, if notice of such breach was provided prior to the second anniversary
of the Closing Date) and thereafter shall expire and have no further force and effect. Except as
otherwise provided herein, all covenants and agreements contained herein, other than those which by
their terms are to be performed in whole or in part after the Closing Date, shall terminate as of
the Closing Date.
6.2. Expenses. Each of the parties will bear and pay all other costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated pursuant to this
Agreement; except as may be concurrently or subsequently agreed in writing between the Company and
any Purchaser.
6.3. Amendment; Waiver. No amendment or waiver of any provision of this Agreement
will be effective with respect to any party unless made in writing and signed by an officer of a
duly authorized representative of such party. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. No waiver of any party to this Agreement will be effective unless
it is in a writing signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies provided by law.
6.4. Counterparts and Facsimile. For the convenience of the parties hereto, this
Agreement may be executed in any number of separate counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts will together constitute the same
agreement. Executed signature pages to this Agreement may be delivered by facsimile or electronic
transmission and such facsimiles or electronic transmissions will be deemed as sufficient as if
actual signature pages had been delivered.
6.5. Governing Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State.
6.6. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.7. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation
of receipt,
-34-
(b) on the first business day following the date of dispatch if delivered by a
recognized next-day courier service, or (c) on the third business day following the date of mailing
if delivered by registered or certified mail, return receipt requested, postage prepaid. All
notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.
(a) If to Purchaser to it at:
As set forth on such Purchaser’s signature page hereto.
(b) If to the Company:
Xxxxxx X. Xxxxxx, III
Chief Executive Officer
Seacoast Banking Corporation of Florida
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Chief Executive Officer
Seacoast Banking Corporation of Florida
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
with a copy to (which copy alone shall not constitute notice):
Xxxxx X. XxxXxxxxx III
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
The Company shall notify the Purchasers and the Escrow Agent promptly upon receipt of a Notice of
Non-Qualification, Notice of Higher Bid, a Winning Bid Notice, a Delay Notice, the Bank’s or the
Company’s determination not to submit or failure to submit a Bid for the Target Institution or the
failure to have a Closing Date on or before April 30, 2010 under Section 5 of the Escrow Agreement,
and the Company’s determination of the allocation of the Non-Contingent Shares, as such terms are
defined in the Escrow Agreement and as provided in the Escrow Agreement. With respect to a
purchase of only the Non-Contingent Shares, the
Company shall notify the Escrow Agent and the respective Purchasers of the number of Non-Contingent
Shares allocated to them and the conditions to the release of the Purchase Price for the
Non-Contingent Shares from Escrow pursuant to the Escrow Agreement shall have been satisfied. This
notice shall be given within five (5) business days of the occurrence of the: (i) receipt of a
Notice of Non-Qualification, (ii) receipt of a Notice of Higher Bid, (iii) the Company’s or Bank’s
determination not to submit or failure to submit a Bid, (iv) receipt of a Delay Notice or (v) the
failure of the Acquisition to close by April 30, 2010.
6.8. Entire Agreement, Etc. (a) This Agreement (including the Exhibits and Disclosure
Schedules hereto), the Escrow Agreement, the Registration Rights Agreement and, with respect to a
particular Purchaser and the Company, each Non-Disclosure Agreement to which the Company and such
Purchaser is a party and any other agreement entered into between
-35-
any Purchaser and the Company in
connection herewith, collectively constitute the entire agreement, and supersedes all other prior
agreements, understandings, representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof; and (b) this Agreement will not be assignable
by operation of law or otherwise (any attempted assignment in contravention hereof being null and
void); provided that a Purchaser may assign its rights and obligations under this Agreement to any
Affiliate or Person that shares a common discretionary investment adviser, but only if the
transferee agrees in writing for the benefit of the Company (with a copy thereof to be furnished to
the Company) to be bound by the terms of this Agreement (any such transferee shall be included in
the term “Purchaser”); provided, further, that no such assignment shall relieve such Purchaser of
its obligations hereunder. By executing this Agreement, each Purchaser (other than a Section
1.2(c) Purchaser or a Section 1.2(d) Purchaser if such Purchaser wires funds directly to the
Company pursuant to Section 1.2(d)) hereby consents to and agrees to be bound by the Escrow
Agreement.
6.9. Interpretation; Other Definitions. Wherever required by the context of this
Agreement, the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine and neuter genders and vice versa, and references to any agreement, document
or instrument shall be deemed to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. All article, section, paragraph or clause references
not attributed to a particular document shall be references to such parts of this Agreement, and
all exhibit, annex and schedule references not attributed to a particular document shall be
references to such exhibits, annexes and schedules to this Agreement. In addition, the following
terms are ascribed the following meanings:
(a) the term “Affiliate” means, with respect to any person, any person
directly or indirectly controlling, controlled by or under common control with, such
other person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlled by” and “under common control
with”) when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management or policies of such person,
whether through the ownership of voting securities by contract or otherwise;
(b) the word “or” is not exclusive;
(c) the words “including,” “includes,” “included” and
“include” are deemed to be followed by the words “without limitation”;
(d) and the terms “herein,” “hereof” and “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision;
(e) “business day” means any day that is not Saturday or Sunday and that is
not a day on which banking institutions generally are authorized or obligated by law or
executive order to be closed in the States of Florida and New York;
(f) “person” has the meaning given to it in Section 3(a)(9) of the Exchange
Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act; and
-36-
(g) to the “knowledge of the Company” or “Company’s knowledge” means
the actual knowledge of the Company’s executive officers.
6.10. Captions. The article, section, paragraph and clause captions herein are for
convenience of reference only, do not constitute part of this Agreement and will not be deemed to
limit or otherwise affect any of the provisions hereof.
6.11. Severability. If any provision of this Agreement or the application thereof to
any person (including the officers and directors of the parties hereto) or circumstance is
determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or circumstances other than
those as to which it has been held invalid or unenforceable, will remain in full force and effect
and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination, the parties shall negotiate in good faith in an effort to
agree upon a suitable and equitable substitute provision to effect the original intent of the
parties.
6.12. No Third Party Beneficiaries. Nothing contained in this Agreement, expressed or
implied, is intended to confer upon any person other than the parties hereto, any benefit, right or
remedies, whether as third party beneficiaries or otherwise, except (i) as set forth in Section
2.3(f) and (ii) that the provisions of Section 4.5 shall inure to the benefit of the Persons who
are Indemnified Parties.
6.13. Time of the Essence. Time is of the essence in the performance of each and
every term of this Agreement.
6.14. Effectiveness. This Agreement shall be effective upon the execution of this
Agreement by the parties hereto.
6.15. Public Announcements. Subject to each party’s disclosure obligations imposed by
law or regulation or the rules of any stock exchange upon which its securities are listed, each of
the parties hereto will cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this Agreement and any of the
transactions contemplated by this Agreement, and neither the Company nor any Purchaser will make
any such news release or public disclosure without first notifying the other, and, in each case,
also receiving the other’s consent (which shall not be unreasonably withheld or delayed), provided
that nothing in this Section 6.15 shall prevent the Company from making timely disclosures under
the Securities Act, the Exchange Act and NASDAQ rules and provided further that parties hereto
acknowledge that CapGen will file an amendment to its report on Schedule 13D, filed with the SEC on
April 1, 2010, as required by the Exchange Act rules, disclosing the terms of the transactions
contemplated by this Agreement. The Company will not publicly disclose the
name of any Purchaser
or its investment advisor, except to the extent required by applicable law or authorized in writing
by such Purchaser, and shall make such disclosures to all applicable Governmental Authorities and
NASDAQ. The Company and each Purchaser agree that within one business day following the
Acquisition (or the Closing Date if only Non-Contingent Shares are purchased), the Company shall
publicly disclose the
-37-
transactions contemplated by this Agreement. From and after such disclosure,
no Purchaser shall be in possession of any material, non-public information received from the
Company in connection with the Bid or the Acquisition or the purchase of the Convertible Preferred
Securities. On or before 9:00 am (New York City time) on the second business day immediately
following the Acquisition (or the Closing Date if only Non-Contingent Shares are purchased), the
Company will file a Current Report on Form 8-K with the SEC describing the Acquisition, if
applicable, and the terms of this Agreement.
6.16. Specific Performance. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that the parties shall be entitled to seek specific
performance of the terms hereof, this being in addition to any other remedies to which they are
entitled at law or equity.
6.17. Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under this Agreement are several and not joint with the obligations of any other
Purchaser under this Agreement, and no Purchaser shall be responsible in any way for the
performance of the obligations of any such other Purchaser under this Agreement. Nothing contained
herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute
Purchaser and any of the other Purchasers as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that Purchaser and any of the other Purchasers are in
any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser acknowledges that no other Purchaser has acted as
agent for Purchaser in connection with making its investment hereunder and that no other Purchaser
will be acting as agent of Purchaser in connection with monitoring its investment in the Securities
or enforcing its rights under this Agreement. Each Purchaser shall be entitled to independently
protect and enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose.
6.18. Survival. The representations and warranties, and the covenants and agreements
to be performed after the Closing Date shall survive the issuance of, and the payment for, the
shares of Convertible Preferred Stock.
-38-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto as of this 8th day of April, 2010.
| COMPANY: Seacoast Banking Corporation of Florida |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, III | |||
| Name: | Xxxxxx X. Xxxxxx, III | |||
| Title: | Chairman & Chief Executive Officer | |||
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Partnership
Tax ID Number of Purchaser: 27 1384636
Name under which Securities to be registered (including nominee name, if applicable): CapGen Capital Group III LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 6,000,000
Tax ID Number of Purchaser: 27 1384636
Name under which Securities to be registered (including nominee name, if applicable): CapGen Capital Group III LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 6,000,000
Notice Information:
Street Address: 000 Xxxx Xxx 00xx Xxxxx Xxxx
Xxxxxxxxx: Xxxx Xxxxxxx, Chief Financial Officer
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxx Xxx 00xx Xxxxx Xxxx
Xxxxxxxxx: Xxxx Xxxxxxx, Chief Financial Officer
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name: CapGen Capital Group III LP
Account No: 1501231831
ABA Routing/Transit No: 000000000
Bank Name: Signature Bank
Account No: 1501231831
ABA Routing/Transit No: 000000000
Bank Name: Signature Bank
Contingent Shares: $35,968,000
Non-Contingent Shares: $14,032,000
Non-Contingent Shares: $14,032,000
| PURCHASER: [Name] |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Managing Director | |||
| By: | N/A | |||
| Name: | ||||
| Title: | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 14088
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Alden Global Distressed Opportunities Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Alden Global Distressed Opportunities Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Notice Information:
|
Alden Global Distressed Opportunities Fund, L.P. | |
| x/x Xxxxx Xxxxxx Xxxxxxx | ||
Xxxxxx Address:
|
000 Xxxxx Xxxxxx, 00xx Xxxxx | |
| Xxx Xxxx, XX 00000 | ||
Attention:
|
General Counsel | |
Fax:
|
000.000.0000 | |
Email:
|
xxxxxx@xxxxxxxxxxx.xxx | |
Telephone:
|
000.000.0000 |
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: N/A
Wire Instructions for Each Purchaser’s Account
Account Name: Alden Global Distressed Opportunities Fund, L.P.
Account No: 2000037643470
ABA Routing/Transit No: 031 201 467
Bank Name: Wachovia Bank, N.A.
Account No: 2000037643470
ABA Routing/Transit No: 031 201 467
Bank Name: Wachovia Bank, N.A.
Contingent Shares: $9,797,550
Non-Contingent Shares: $6,630,850
Non-Contingent Shares: $6,630,850
| PURCHASER: ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P. By: Alden Global Distressed Opportunities Fund GP, LLC, its general partner |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | General Counsel & CCO | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 6630
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: BANC FUND VI L.P.
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VI L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 416,100
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VI L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 416,100
Notice Information: BANC FUND VI L.P.
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Facsimile: 000-000-0000
Email Address: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X. XxxxxxFacsimile: 000-000-0000
Email Address: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
ULTIMATE BENEFICIARY Account Name: BANC FUND VI L.P.
ULTIMATE BENEFICIARY Account No: P64885
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
ULTIMATE BENEFICIARY Account No: P64885
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
| PURCHASER: | ||||
| BANC FUND VI L.P. | ||||
| By: | MidBanc VI L.P. | |||
| an Illinois limited partnership, | ||||
| Its General Partner | ||||
| By: | THE BANC FUNDS COMPANY, L.L.C. | |||
| an Illinois limited liability company, | ||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Member | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1099
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: BANC FUND VII L.P.
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VII L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 616,500
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VII L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 616,500
Notice Information: BANC FUND VII L.P.
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X. XxxxxxFax: 000-000-0000
Email: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
ULTIMATE BENEFICIARY Account Name: BANC FUND VII L.P.
ULTIMATE BENEFICIARY Account No: P64886
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
ULTIMATE BENEFICIARY Account No: P64886
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
| PURCHASER: | ||||
| BANC FUND VII L.P. | ||||
| By: | MidBanc VII L.P. | |||
| an Illinois limited partnership, | ||||
| Its General Partner | ||||
| By: | THE BANC FUNDS COMPANY, L.L.C. | |||
| an Illinois limited liability company, | ||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Member | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 699
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: BANC FUND VIII L.P.
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VIII L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 485,800
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): BANC FUND VIII L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 485,800
Notice Information: BANC FUND VIII L.P.
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X. XxxxxxFax: 000-000-0000
Email: xxxxxx@xxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
ULTIMATE BENEFICIARY Account Name: BANC FUND VIII L.P.
ULTIMATE BENEFICIARY Account No: P73407
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
ULTIMATE BENEFICIARY Account No: P73407
ABA Routing/Transit No: 000000000
Beneficiary Account No.: Bank Name: 9009000127
Beneficiary Account Name: PTFS
Bank Name: JPMORGAN CHASE BANK
| PURCHASER: | ||||
| BANC FUND VIII L.P. | ||||
| By: | MidBanc VIII L.P. | |||
| an Illinois limited partnership, | ||||
| Its General Partner | ||||
| By: | THE BANC FUNDS COMPANY, L.L.C. | |||
| an Illinois limited liability company, | ||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx, Member | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1200
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Island Corporation
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Basswood Opportunity Fund, Inc.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser -0 -
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Basswood Opportunity Fund, Inc.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser -0 -
Notice Information: Basswood Opportunity Fund, Inc.
Street Address: 000 Xxxxxxx Xxxxxx, 00xx Xx.
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxx Xxxxxx, 00xx Xx.
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name: Basswood Opportunity Fund, Inc.
Account No: 816632681
ABA Routing/Transit No: 000-000-000
Bank Name: JPMorgan Chase
Account No: 816632681
ABA Routing/Transit No: 000-000-000
Bank Name: JPMorgan Chase
| PURCHASER: [Name] |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Director of Basswood Opportunity Fund, Inc. | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| * | Produced by Investor | |
| Total Purchase Price = $1,389,000 |
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1388
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: DE Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Basswood Opportunity Partners LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 50,760 Long & 50,760 short
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Basswood Opportunity Partners LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 50,760 Long & 50,760 short
Notice Information: Basswood Opportunity Partners, LP
Street Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name: Basswood Opportunity Partners, LP
Account No: 816632301
ABA Routing/Transit No: 000-000-000
Bank Name: JPMorgan Chase
Account No: 816632301
ABA Routing/Transit No: 000-000-000
Bank Name: JPMorgan Chase
| PURCHASER: | ||||
| [Name] | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxxxx | ||||
| Title: Managing Member | ||||
| Basswood Capital Management, LLC | ||||
| c/o Basswood Opportunity Partners, LP | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| * | Produced By Investor | |
| Total Purchase Price = $4,127,000 |
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 4126
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Bermuda
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 59,950
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 59,950
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Contingent Shares: $
Non-Contingent Shares: $ See attached.
Non-Contingent Shares: $ See attached.
| PURCHASER: | ||||
| Bay Pond Investors (Bermuda) L.P. | ||||
| By: Wellington Management Company, LLP, as its investment adviser | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Vice President & Counsel | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 2075
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Delaware
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 184,361
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 184,361
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Contingent Shares: $
Non-Contingent Shares: $ See attached.
Non-Contingent Shares: $ See attached.
| PURCHASER: | ||||
| Bay Pond Partners, L.P. | ||||
| By: Wellington Management Company, LLP, as its investment adviser | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Vice President & Counsel | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 4367
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership DE
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Boulderwood Co LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 100000
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Boulderwood Co LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 100000
Notice Information: Boulderwood Co LP
Street Address: c/o Morgan Xxxxxxx Prime Brokerage
Attention: Xxxxxxx Xxxxx, 4th Floor, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
Fax:
Email: XXXXX000@xxxxx.xxx
Telephone: 000-000-0000
Street Address: c/o Morgan Xxxxxxx Prime Brokerage
Attention: Xxxxxxx Xxxxx, 4th Floor, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
Fax:
Email: XXXXX000@xxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Account Name: m/c Xxxxxx Xxxxxxx Co. Inc. NY
Account No: 38-890774
Xxxxx Boulderwood Co. LP; Inc A/C # 038-22806
ABA Routing/Transit No: 000000000
Bank Name: Citibank NA NY
Account No: 38-890774
Xxxxx Boulderwood Co. LP; Inc A/C # 038-22806
ABA Routing/Transit No: 000000000
Bank Name: Citibank NA NY
| PURCHASER: Boulderwood Co. LP |
||||
| By: | /s/ Xxxxxxx X. Honstmann | |||
| Name: | Xxxxxxx X. Honstmann | |||
| Title: | GP | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
Purchase
Amount =
$1,000,00000
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 499
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Maryland
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information: Xxxxxxx Family Investors
Street Address: 10401 Grosvnor Lane H1703
Attention: Xxxxxx Xxxxxxx
Fax:
Email: xxxxxxxxxx@xxx.xxx
Telephone: 000-000-0000 x000
Street Address: 10401 Grosvnor Lane H1703
Attention: Xxxxxx Xxxxxxx
Fax:
Email: xxxxxxxxxx@xxx.xxx
Telephone: 000-000-0000 x000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account
Name: Xxxxxxx Family Investors LLC
Account No: 431-00683
ABA Routing/Transit No: 000000000
Account No: 431-00683
ABA Routing/Transit No: 000000000
Bank Name: Xxxxxxxxx and Company
Contingent Shares: $___________
Non-Contingent Shares: $___________
| PURCHASER: | ||||||
| Xxxxxxx Family Insurance, LLC | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Member | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 124
Price per Share of Convertible Preferred Stock purchased: $____________
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $____________
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Statutory Trust
Tax ID Number of Purchaser: 57 1199020
Name under which Securities to be registered (including nominee name, if applicable): Xxxxxxx Financial Industries Fund
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 600,000
Tax ID Number of Purchaser: 57 1199020
Name under which Securities to be registered (including nominee name, if applicable): Xxxxxxx Financial Industries Fund
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 600,000
Notice Information: Mendon Capital Advisors Corp.
Street Address: 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Citibank New York
ABA # 000000000
Account: Xxxxx Brothers Xxxxxxxx & Co.
A/C # 09250276
FBO Ref A/C # 6171474
A/C Name: Xxxxxxx Financial Industries Fund
ABA # 000000000
Account: Xxxxx Brothers Xxxxxxxx & Co.
A/C # 09250276
FBO Ref A/C # 6171474
A/C Name: Xxxxxxx Financial Industries Fund
| PURCHASER: | ||||||
| Xxxxxx Financial Industries Fund | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: EVP/CFO | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1499
Price per Share of Convertible Preferred Stock purchased: $____________
Price per Share of Convertible Preferred Stock purchased: $____________
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: LP/Delaware
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Consector Partners, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 239,700
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Consector Partners, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 239,700
Notice Information:
Street Address: 000 X. 00 Xx., Xxxxx 000, Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 X. 00 Xx., Xxxxx 000, Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Account Name: UBS Securities FFC: Consector Partners LP (Escrow)
Account No: 000-XX-000000-000
XXX Routing/Transit No: 000-000-000
FFC Acct. No.: 00000000
Bank Name: UBS AG
Account No: 000-XX-000000-000
XXX Routing/Transit No: 000-000-000
FFC Acct. No.: 00000000
Bank Name: UBS AG
| PURCHASER: | ||||||
| Consector Partners, LP | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |||||
| Name: Xxxxxxx X. Xxxxx, Xx. | ||||||
| Title: Managing Partner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 499
Price per Share of Convertible Preferred Stock purchased: $____________
Price per Share of Convertible Preferred Stock purchased: $____________
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Eagle Capital Partners
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Eagle Capital Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 496,700
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Eagle Capital Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 496,700
Notice Information:
Street Address:
Attention:
Fax:
Email:
Telephone:
Street Address:
Attention:
Fax:
Email:
Telephone:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| [Name] | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: Xxxxxxx X. Xxxxxx | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 599
Price per Share of Convertible Preferred Stock purchased: $____________
Price per Share of Convertible Preferred Stock purchased: $____________
Total Purchase Price: $3,000,000
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser:
Endeavour Capital Offshore Fund Ltd.
British Virgin Islands
Tax ID Number of Purchaser: n/a
Name under which Securities to be registered (including nominee name, if applicable): Endeavour Capital Offshore Fund Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Endeavour Capital Offshore Fund Ltd.
British Virgin Islands
Tax ID Number of Purchaser: n/a
Name under which Securities to be registered (including nominee name, if applicable): Endeavour Capital Offshore Fund Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Notice Information: Endeavour Capital
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
SEE ATTACHED
SEE ATTACHED
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Endeavour Capital Offshore Fund Ltd. | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: Xxxxxxxx X. Xxxx | ||||||
| Title: President, Endeavour Capital
Advisors Inc., investment advisor to Endeavour Capital Offshore Fund Ltd. |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Contingent Shares Only
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1,554,839
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $2,410,000 US
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $2,410,000 US
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser:
Endeavour Capital Partners L.P.
New York
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Endeavour Capital Partners L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Endeavour Capital Partners L.P.
New York
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Endeavour Capital Partners L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Notice Information: Endeavour Capital
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
SEE ATTACHED
SEE ATTACHED
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Endeavour Capital Partners LP | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: Xxxxxxxx X. Xxxx Title: General Partner President, Endeavour Capital Advisors Inc., |
||||||
| investment advisor to Endeavour Capital Partners LP | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Contingent Shares Only
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 1,606,452
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $2,490,000.60
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $2,490,000.60
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser:
Endeavour Financial Restoration Fund, L.P.
Delaware
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Endeavour Financial Restoration Fund LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Endeavour Financial Restoration Fund, L.P.
Delaware
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Endeavour Financial Restoration Fund LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser Zero
Notice Information: Endeavour Capital
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: ________________________
Wire Instructions for Each Purchaser’s Account
SEE ATTACHED
SEE ATTACHED
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Endeavour Financial Restoration Fund LP | ||||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: Xxxxxxxx X. Xxxx | ||||||
| Title: General Partner | ||||||
| President, Endeavour Capital Advisors Inc., | ||||||
| investment advisor to Endeavour Capital Restoration Fund LP | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Contingent Shares Only
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 7,025,806
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $10,889,999.30
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $10,889,999.30
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Corporation/New York
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: X
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No: See attached spreadsheet.
ABA Routing/Transit No:
Bank Name:
Account No: See attached spreadsheet.
ABA Routing/Transit No:
Bank Name:
Contingent Shares: $_________
Non-Contingent Shares: $_________ See attached.
Non-Contingent Shares: $_________ See attached.
| PURCHASER: | ||||||
| First Opportunity Fund, Inc. | ||||||
| By: Wellington Management Company, LLP, as its investment adviser |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxx | ||||||
| Title: Vice President & Counsel | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 472
Price per Share of Convertible Preferred Stock purchased: $____________
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $____________
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
* FPA Hawkeye-7 Fund subscribes for contingent capital only*
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY: SEE INSTITUTIONAL INVESTOR PAGE
Form of organization and jurisdiction of organization of Purchaser:
Tax ID Number of Purchaser:
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Tax ID Number of Purchaser:
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Notice Information:
Street Address:
Attention:
Fax:
Email:
Telephone:
Street Address:
Attention:
Fax:
Email:
Telephone:
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: FPA HAWKEYE FUND, LLC-FPA HAWKEYE-7 FUND |
||||
| By: | /s/ J. Xxxxxxx Xxxxxx | |||
| J. Xxxxxxx Xxxxxx | ||||
| Chief Operating Officer | ||||
| By: | /s/ E. Lake Xxxxxxx, III | |||
| E. Lake Xxxxxxx, III | ||||
| Vice President & Controller | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 5,489
Price per Share of Convertible Preferred Stock purchased: $1,000
Non-Contingent Shares Subscribed: $-0-
Total Purchase Price: $5,489,000
Is Purchaser an “Institutional Investor?”: Yes
Conversion Price is $1.55 per share of common stock
Price per Share of Convertible Preferred Stock purchased: $1,000
Non-Contingent Shares Subscribed: $-0-
Total Purchase Price: $5,489,000
Is Purchaser an “Institutional Investor?”: Yes
Conversion Price is $1.55 per share of common stock
* FPA Hawkeye Fund subscribes for contingent capital only*
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY: SEE INSTITUTIONAL INVESTOR PAGE
Form of organization and jurisdiction of organization of Purchaser:
Tax ID Number of Purchaser:
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Tax ID Number of Purchaser:
Name under which Securities to be registered (including nominee name, if applicable):
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Notice Information:
Street Address:
Attention:
Fax:
Email:
Telephone:
Street Address:
Attention:
Fax:
Email:
Telephone:
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: FPA HAWKEYE FUND, LLC-FPA HAWKEYE FUND |
||||
| By: | /s/ J. Xxxxxxx Xxxxxx | |||
| J. Xxxxxxx Xxxxxx | ||||
| Chief Operating Officer | ||||
| By: | /s/ E. Lake Xxxxxxx, III | |||
| E. Lake Xxxxxxx, III | ||||
| Vice President & Controller | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 4,511
Price per Share of Convertible Preferred Stock purchased: $1,000
Non-Contingent Shares Subscribed: $-0-
Total Purchase Price: $4,511,000
Is Purchaser an “Institutional Investor?”: Yes
Conversion Price is $1.55 per share of common stock
Price per Share of Convertible Preferred Stock purchased: $1,000
Non-Contingent Shares Subscribed: $-0-
Total Purchase Price: $4,511,000
Is Purchaser an “Institutional Investor?”: Yes
Conversion Price is $1.55 per share of common stock
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Cayman Islands
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached
spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser 152,118
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account
Name: See attached spreadsheet
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Contingent
Shares:
$ See attached
Non-Contingent Shares: $
Non-Contingent Shares: $
| PURCHASER: | ||||||
| Ithan Creek Master Investors (Cayman) L.P. | ||||||
| By: Wellington Management Company, LLP, as its investment adviser |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: Vice President & Counsel | ||||||
| By: | ||||||
| Title: | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 2534
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Cayman Islands
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached
spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser 0
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account
Name:
See attached spreadsheet
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Contingent
Shares:
$ See attached
Non-Contingent Shares: $
Non-Contingent Shares: $
| PURCHASER: | ||||||
| Ithan Creek Master Investment Partnership (Cayman) II, L.P. |
||||||
| By: Wellington Management Company, LLP, as its investment adviser |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: Vice President & Counsel | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 256
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
This Purchaser elects not to purchase Non-Contingent Shares.
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Corporation/Cayman Islands
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): KBW
Financial Services Master Fund, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common
Stock) currently held beneficially by Purchaser 0
Notice Information: KBW Asset Management, Inc.
Street Address: 000 Xxxxxxx Xxxxxx
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
Email: xxxxxx@xxx.xxx
Telephone: (000) 000-0000
Street Address: 000 Xxxxxxx Xxxxxx
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
Email: xxxxxx@xxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Number of Shares:
Price Per Share: $1.55
Purchase Price: $3,250,000
Contingent only.
Price Per Share: $1.55
Purchase Price: $3,250,000
Contingent only.
Wire Instructions for Each Purchaser’s Account
Account
Name: Xxxxxxx Sachs & Co., N.Y.
Account No: 000-0-000000
ABA Routing/Transit No: 000-000-000
Bank Name: Chase Manhattan Bank, N.Y.
For further Credit: KBW Financial Services Master Fund, Ltd.; Account #.: 002-307296
Account No: 000-0-000000
ABA Routing/Transit No: 000-000-000
Bank Name: Chase Manhattan Bank, N.Y.
For further Credit: KBW Financial Services Master Fund, Ltd.; Account #.: 002-307296
| PURCHASER: | ||||||
| KBW Financial Services Master Fund, Ltd. | ||||||
| By: | /s/ Xxxx X. Xxxxx
|
|||||
| Title: KBW Partners, G.P. Vice President | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware, Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Kensico
Associates, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser *$2,958,700.00
Notice Information:
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: N/A
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Kensico Associates, L.P. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: Managing Member Kensico Capital LLC., Its General Partner |
||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
| * | The Purchaser does not wish for its ownership of the Company on an as-converted basis to exceed 4.9% after giving effect to the issuance of all Company Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to this Agreement. The number of Shares the Purchaser has subscribed for by its signature hereto and the total purchase price for such shares shall be adjusted by the Company on the Closing Date to the extent (and only to the extent) necessary to ensure that such ownership limitation is not exceeded. |
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands, Corporation
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Kensico
Offshore Fund II Master, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common
Stock) currently held beneficially by Purchaser *$949,700.00
Notice Information:
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: N/A
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Kensico Offshore Fund II Master, Ltd. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: President | ||||||
| Kensico Capital Management Its Investment Manager |
||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
| * | The Purchaser does not wish for its ownership of the Company on an as-converted basis to exceed 4.9% after giving effect to the issuance of all Company Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to this Agreement. The number of Shares the Purchaser has subscribed for by its signature hereto and the total purchase price for such shares shall be adjusted by the Company on the Closing Date to the extent (and only to the extent) necessary to ensure that such ownership limitation is not exceeded. |
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands, Corporation
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Kensico
Offshore Fund Master, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common
Stock) currently held beneficially by Purchaser *$2,557,600.00
Notice Information:
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: N/A
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Kensico Offshore Fund Master, Ltd. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: President | ||||||
| Kensico Capital Management Corp. | ||||||
| Its Investment Manager | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
| * | The Purchaser does not wish for its ownership of the Company on an as-converted basis to exceed 4.9% after giving effect to the issuance of all Company Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to this Agreement. The number of Shares the Purchaser has subscribed for by its signature hereto and the total purchase price for such shares shall be adjusted by the Company on the Closing Date to the extent (and only to the extent) necessary to ensure that such ownership limitation is not exceeded. |
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware, Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Kensico
Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser *$2,034,000.00
Notice Information:
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: N/A
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||
| Kensico Partners, L.P. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
| Kensico Capital LLC., Its General Partner | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
| * | The Purchaser does not wish for its ownership of the Company on an as-converted basis to exceed 4.9% after giving effect to the issuance of all Company Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to this Agreement. The number of Shares the Purchaser has subscribed for by its signature hereto and the total purchase price for such shares shall be adjusted by the Company on the Closing Date to the extent (and only to the extent) necessary to ensure that such ownership limitation is not exceeded. |
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta
Hedge Fund II, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser 549,700
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #: |
0000-0000-0 | |
Account Name: |
Xxxxxx Xxxxxxx & Co. | |
Account #: |
038-890774 | |
Address: |
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx |
|
| Xxx Xxxx, XX 00000 | ||
For further credit to: |
||
Account
Name: Malta Hedge Fund II, L.P. |
||
Account #: 038-066882 |
||
Total Number of Shares Subscribed: |
2,417,000 | |
Non-Contingent Shares Subscribed: 142,000 |
||
Contingent Shares Subscribed: 2,275,000 |
||
| PURCHASER: | ||||||
| MALTA HEDGE FUND II, L.P. | ||||||
| By: XXXX Holdings, LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 141
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta
Hedge Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser 110,500
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #: |
0000-0000-0 | |
Account Name: |
Xxxxxx Xxxxxxx & Co. | |
Account #: |
038-890774 | |
Address: |
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx |
|
| Xxx Xxxx, XX 00000 | ||
For further credit to: |
||
Account Name: Malta Hedge Fund, L.P. |
||
Account #: 038-056032 |
||
Total Number of Shares Subscribed: |
421,000 | |
Non-Contingent Shares Subscribed: 25,000 |
||
Contingent Shares Subscribed: 396,000 |
||
| PURCHASER: | ||||||
| MALTA HEDGE FUND, L.P. | ||||||
| By: XXXX Holdings, LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 24
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta MLC
Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock)
currently held beneficially by Purchaser 489,400
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #: |
0000-0000-0 | |
Account Name: |
Xxxxxx Xxxxxxx & Co. | |
Account #: |
038-890774 | |
Address: |
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx |
|
| Xxx Xxxx, XX 00000 | ||
| For further credit to: | ||
Account Name: Malta MLC Fund, L.P. |
||
Account #: 038-106712 |
||
Total Number of Shares Subscribed: |
1,810,000 | |
Non-Contingent Shares Subscribed: 106,000 |
||
Contingent Shares Subscribed: 1,704,000 |
||
| PURCHASER: | ||||||
| MALTA MLC FUND, L.P. | ||||||
| By: XXXX Holdings, LLC | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 105
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands Exempted Company
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Malta MLC Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 179,700
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Malta MLC Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 179,700
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #:
|
0000-0000-0 | |
Account Name:
|
Xxxxxx Xxxxxxx & Co. | |
Account #:
|
038-890774 | |
Address:
|
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx | |
| Xxx Xxxx, XX 00000 | ||
| For further credit to: | ||
Account Name: Malta MLC Offshore, Ltd
Account #: 038-106746
Account #: 038-106746
Total Number of Shares Subscribed: 409,000
Non-Contingent Shares Subscribed: 24,000
Contingent Shares Subscribed: 385,000
Non-Contingent Shares Subscribed: 24,000
Contingent Shares Subscribed: 385,000
| PURCHASER: MALTA MLC OFFSHORE, LTD. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Director | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 23
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands Exempted Company
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Malta Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 196,000
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Malta Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 196,000
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #:
|
0000-0000-0 | |
Account Name:
|
Xxxxxx Xxxxxxx & Co. | |
Account #:
|
038-890774 | |
Address:
|
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx | |
| Xxx Xxxx, XX 00000 | ||
| For further credit to: | ||
Account Name: Malta Offshore, Ltd.
Account #: 038-066940
Account #: 038-066940
Total Number of Shares Subscribed: 834,000
Non-Contingent Shares Subscribed: 49,000
Contingent Shares Subscribed: 785,000
Non-Contingent Shares Subscribed: 49,000
Contingent Shares Subscribed: 785,000
| PURCHASER: MALTA OFFSHORE, LTD. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Director | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 48
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 35,500
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 35,500
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #:
|
0000-0000-0 | |
Account Name:
|
Xxxxxx Xxxxxxx & Co. | |
Account #:
|
038-890774 | |
Address:
|
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx | |
| Xxx Xxxx, XX 00000 | ||
| For further credit to: | ||
Account name: Malta Partners, L.P.
Account #: 038-066874
Account #: 038-066874
Total Number of Shares Subscribed: 116,000
Non-Contingent Shares Subscribed: 7,000
Contingent Shares Subscribed: 109,000
Non-Contingent Shares Subscribed: 7,000
Contingent Shares Subscribed: 109,000
| PURCHASER: MALTA PARTNERS, L.P. |
||||||
| By: | XXXX Holdings, LLC | |||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 6
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta Titan Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 1,361,400
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Malta Titan Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 1,361,400
Notice Information:
Street Address: c/o Sandler O’Neil Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler O’Neil Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||
ABA #:
|
0000-0000-0 | |
Account Name:
|
Xxxxxx Xxxxxxx & Co. | |
Account #:
|
038-890774 | |
Address:
|
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx | |
| Xxx Xxxx, XX 00000 | ||
| For further credit to: | ||
Account name: Malta Titan Fund, L.P.
Account #: 038-C06775
Account #: 038-C06775
Total Number of Shares Subscribed: 6,343,000
Non-Contingent Shares Subscribed: 372,000
Contingent Shares Subscribed: 5,971,000
Non-Contingent Shares Subscribed: 372,000
Contingent Shares Subscribed: 5,971,000
| PURCHASER: MALTA TITAN FUND, L.P. |
||||||
| By: | XXXX Holdings, LLC | |||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Title: Managing Member | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 371
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser:
Cayman Islands exempted limited partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Millennium Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently
held beneficially by Purchaser 0
Cayman Islands exempted limited partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable):
Millennium Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently
held beneficially by Purchaser 0
Notice Information: X/x Xxxxxxxxxx Xxxxxxxxxx XXX
Xxxxxx Xxxxxxx: 000 Xxxxx Xxxxxx, 0xx Xxxxx
Attention: General Counsel
Fax: 000-000-0000
Email: XxxxxxxXxxxxxx@xxx.xxx
Telephone: 000-000-0000
Xxxxxx Xxxxxxx: 000 Xxxxx Xxxxxx, 0xx Xxxxx
Attention: General Counsel
Fax: 000-000-0000
Email: XxxxxxxXxxxxxx@xxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Chase NYC
Swift Code: XXXXXX00
ABA #: 000-000-000
A/C: Xxxxxxx Xxxxx Professional Corp
A/C: ###-##-####
F/A/C: Millennium Partners LP
A/C: 359-49821-D5
Swift Code: XXXXXX00
ABA #: 000-000-000
A/C: Xxxxxxx Xxxxx Professional Corp
A/C: ###-##-####
F/A/C: Millennium Partners LP
A/C: 359-49821-D5
Contingent Shares: $10,000,000 (Ten million)
Non-Contingent Shares: $0 (Zero)
Non-Contingent Shares: $0 (Zero)
| PURCHASER: Millennium Partners, L.P. |
||||||
| By: | Millennium Management LLC | |||||
| its General Partner | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Title: Co-President | ||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership Bermuda
Tax ID Number of Purchaser: 980401323
Name under which Securities to be registered (including nominee name, if applicable): Moors and Mendon Master Fund, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 250,000
Tax ID Number of Purchaser: 980401323
Name under which Securities to be registered (including nominee name, if applicable): Moors and Mendon Master Fund, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 250,000
Notice Information: Mendon Capital Advisors Corp
Street Address: 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Bank of New York
ABA# 000000000
A/C Xxxxxxxxx and Company
A/C# 8900007001
Sub A/C Moors and Mendon Master Fund LP
A/C# 43300045
ABA# 000000000
A/C Xxxxxxxxx and Company
A/C# 8900007001
Sub A/C Moors and Mendon Master Fund LP
A/C# 43300045
| PURCHASER: MOORS AND MENDON MASTER FUND LP |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director, M&M Capital Ltd CP to the Moors and Mendon Master Fund LP |
|||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed: 499
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands Exempted Company
Tax ID Number of Purchaser: None
Name under which Securities to be registered (including nominee name, if applicable): Northaven Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Tax ID Number of Purchaser: None
Name under which Securities to be registered (including nominee name, if applicable): Northaven Offshore, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Notice Information:
Street Address: c/o 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: c/o 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Wire
to: UBS AG, ABA # 000-000-000. For Credit to: UBS Securities LLC — HFS, Account # 101WA797414000. For Further Credit to: Northaven Offshore, Ltd. Account # 483-80145
$625,000 TOTAL OF WHICH
$125,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
$125,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
| PURCHASER: NORTHAVEN OFFSHORE, LTD. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Director | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed: 0
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: NY Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Northaven Partners II, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Northaven Partners II, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Notice Information:
Street Address: 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Wire
to: UBS AG, ABA # 000-000-000. For Credit to: UBS
Securities LLC — HFS, Account # 101WA797414000. For Further Credit to: Northaven Partners II, L.P. Account # 483-90655
$330,000 TOTAL OF WHICH
$65,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
$65,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
| PURCHASER: NORTHAVEN PARTNERS II, L.P. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Member of the LP | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed: 0
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: NY Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Northaven Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Northaven Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser None
Notice Information:
Street Address: 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: 000-000-0000
Email: xxxx.xxxxx@xxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Wire
to: UBS AG, ABA # 000-000-000. For Credit to: UBS Securities LLC — HFS, Account # 101WA797414000. For Further Credit to: Northaven Partners,
L.P. Account # 483-79909
$4,045,000 TOTAL OF WHICH
$810,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
$810,000 MAY BE ALLOCATED TO THE NON-CONTINGENT OFFERING.
| PURCHASER: NORTHAVEN PARTNERS, L.P. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Member of the LP | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed: 0
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership New York
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): PRB Investors, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 326,123
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): PRB Investors, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 326,123
Notice Information: PRB Advisors
Street Address: 000 Xxxx Xxx., 00xx Xxxxx, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxx Xxx., 00xx Xxxxx, Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxxxx.xxx
Telephone: 000-000-0000
Wire Instructions for Each Purchaser’s Account
Account Name:
|
XX Xxxxxx Xxxxx | |
Account No:
|
ABA #: 021 000 021 | |
ABA Routing/Transit No:
|
A/C #: 066 005 442 | |
Bank Name:
|
A/C: Xxxxxxx Sachs | |
For Further Credit:
|
FFC: PRB Investors, LP | |
| A/C: 7TLN5519 |
| PURCHASER: PRB INVESTORS, L.P. |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Principal | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Principal | |||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed: 0
Price per Share of Convertible Preferred Stock purchased: $
Price per Share of Convertible Preferred Stock purchased: $
Total Purchase Price: $
Indicate by “X” if Purchaser is an “Institutional Investor”:
Indicate by “X” if Purchaser is an “Institutional Investor”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: See Schedule A hereto
Tax ID Number of Purchaser: See Schedule A hereto
Name under which Securities to be registered (including nominee name, if applicable): See Schedule A hereto
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser See Schedule A hereto
Tax ID Number of Purchaser: See Schedule A hereto
Name under which Securities to be registered (including nominee name, if applicable): See Schedule A hereto
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser See Schedule A hereto
Notice Information: c/x Xxxxxx Investment Management, LLC
Street Address: Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
Attention: General Counsel
Fax: 000-000-0000
Email: Xxxxxxx_Xxxxxxxx@xxxxxx.xxx; Xxxx_Xxxxxxx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
Attention: General Counsel
Fax: 000-000-0000
Email: Xxxxxxx_Xxxxxxxx@xxxxxx.xxx; Xxxx_Xxxxxxx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”: X (all Purchasers listed on Schedule A hereto)
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
| PURCHASER: | ||||||||
| Each entity listed on Schedule A hereto | ||||||||
| By: | Xxxxxx Investment Management, LLC | |||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxx | |||||||
| Title: | Managing Director | |||||||
Each Purchaser listed on Schedule A hereto identified with an “*” is a Xxxxxx
registered investment company, and a copy of the Declaration of Trust of each
such Purchaser (each, a “Xxxxxx Fund”) is on file with the Secretary of State
of the Commonwealth of Massachusetts. Notice is given that this Agreement is
executed on behalf of the Trustees of each Xxxxxx Fund as Trustees, and not
individually, and that the obligations of this Agreement are not binding on any
of the Trustees or Officers or shareholders of such Xxxxxx Fund individually,
but are binding only on the assets and property of such Xxxxxx Fund with
respect to its obligations hereunder.
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Maryland, Individual
Tax ID Number of Purchaser: ###-##-####
Name under which Securities to be registered (including nominee name, if applicable): Xxxxxx X. Xxxxxxxxx
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: ###-##-####
Name under which Securities to be registered (including nominee name, if applicable): Xxxxxx X. Xxxxxxxxx
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information: Xxxxxx Xxxxxxxxx
Street Address: 0000 Xxxx Xxxx, Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx/Xxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 0000 Xxxx Xxxx, Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx/Xxx Xxxxxxxxx
Fax: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name: Xxxxxx X. Xxxxxxxxx
Account No:431-00682
ABA Routing/Transit No: 000000000
Bank Name: Xxxxxxxxx and Company
Account No:431-00682
ABA Routing/Transit No: 000000000
Bank Name: Xxxxxxxxx and Company
| PURCHASER: | ||||||||
| Xxxxxx Xxxxxxxxx | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxxxx | |||||||
| Title: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 374
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Cayman Islands Exempted Company
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Samlyn Offshore Master Fund, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Samlyn Offshore Master Fund, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information: Xxxxx Foxbauner
Street Address: 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Street Address: 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:Xxxxxx Xxxxxxx USA
Account No: 00000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank
Sub Account No.: 000X00000
Samlyn Offshore Master Fund, Ltd.
Account No: 00000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank
Sub Account No.: 000X00000
Samlyn Offshore Master Fund, Ltd.
Contingent Shares: 7,137,000 @ $1.55 per share
Non-Contingent Shares: 0
Non-Contingent Shares: 0
| PURCHASER: | ||||||||
| Samlyn Offshore Master Fund, Ltd. | ||||||||
| By: | /s/ Xxxxx Foxbauner | |||||||
| Name: | Xxxxx Foxbauner | |||||||
| Title: | Authorized Signatory | |||||||
Notwithstanding anything herein to the contrary, the Samlyn Capital entities hereby only subscribed
to the contingent shares and require the Company to cause the Escrow Agent to release its entire
amount of escrowed funds in the event of a Notice of Non-Qualification, a Notice of Higher Bid, a
Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice, all as agreed between Samlyn
Capital, LLC and the Company pursuant to the terms of the letter agreement dated the date hereof.
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Samlyn Onshore Fund, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Samlyn Onshore Fund, LP
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information: Xxxxx Foxbauner
Street Address: 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Street Address: 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:Xxxxxx Xxxxxxx USA
Account No:00000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank
Sub Account No.: 000X00000
Samlyn Onshore Fund, LP
Account No:00000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank
Sub Account No.: 000X00000
Samlyn Onshore Fund, LP
Contingent Shares: 7,863,000 @ $1.55 per share
Non-Contingent Shares: -0-
Non-Contingent Shares: -0-
| PURCHASER: Samlyn Onshore Fund, LP |
||||
| By: | /s/ Xxxxx Foxbauner | |||
| Name: | Xxxxx Foxbauner | |||
| Title: | Authorized Signatory | |||
Notwithstanding anything herein to the contrary, the Samlyn Capital entities hereby only subscribed
to the contingent shares and require the Company to cause the Escrow Agent to release its entire
amount of escrowed funds in the event of a Notice of Non-Qualification, a Notice of Higher Bid, a
Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice, all as agreed between Samlyn
Capital, LLC and the Company pursuant to the terms of the letter agreement dated the date hereof.
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Partnership; Delaware USA
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Silver Point Capital Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Silver Point Capital Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information:
Street Address: 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Street Address: 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Indicate
by “X” if Purchaser is a “Section 1.2(c)
Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account
Name: Silver Point Capital Fund, L.P.
Account No: 0000000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank, N.A.
Account No: 0000000000
ABA Routing/Transit No: 000000000
Bank Name: Citibank, N.A.
Contingent Shares: $
Non-Contingent Shares: $
Non-Contingent Shares: $
| PURCHASER: Silver Point Capital Fund, L.P. |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 299
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Partnership; Cayman Islands
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Silver Point Capital Offshore Master Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Silver Point Capital Offshore Master Fund, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information:
Street Address: 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Street Address: 0 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account
Name: Silver Point Capital Offshore Master Fund, L.P.
Account No: 9947131127
ABA Routing/Transit No: 000000000
Bank Name: Citibank, N.A.
Account No: 9947131127
ABA Routing/Transit No: 000000000
Bank Name: Citibank, N.A.
| PURCHASER: Silver Point Capital Offshore Master Fund, L.P. |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 699
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Delaware Limited Partnership
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): XXXX Capital Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 1,375,000
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): XXXX Capital Partners, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 1,375,000
Notice Information:
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Street Address: c/o Sandler X’Xxxxx Asset Management, LLC
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
Telephone: (000) 000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Citibank, N.A. New York | ||||
| ABA #: | 0000-0000-0 | |||
| Account Name: | Xxxxxx Xxxxxxx & Co. | |||
| Account #: | 038-890774 | |||
| Address: | 0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx | |||
| Xxx Xxxx, XX 00000 | ||||
| For further credit to: | ||||
Account Name: XXXX Capital Partners, L.P.
Account #: 038-106993
Account #: 038-106993
Total Number of Shares Subscribed: 3,100,000
Non-Contingent Shares Subscribed: 0
Contingent Shares Subscribed: 3,100,000
Non-Contingent Shares Subscribed: 0
Contingent Shares Subscribed: 3,100,000
| PURCHASER: | ||||||||
| XXXX CAPITAL PARTNERS, L.P. | ||||||||
| By: | XXXX Venture Holdings, LLC | |||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | Managing Member | |||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 0
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Stichting Depositary Apg Dev Markets Equity
Pool/Gef 875 Capital Strategy Fd; Xxxx Xxxxxxxxxxx 00, Xxxxxxx, xxx Xxxxxxxxxxx
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Stichting Depositary Apg Dev Markets Equity Pool/Gef 875 Capital Strategy Fd
Name under which Securities to be registered (including nominee name, if applicable): Stichting Depositary Apg Dev Markets Equity Pool/Gef 875 Capital Strategy Fd
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently
held beneficially by Purchaser zero
Notice Information: Endeavour Capital
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No: See attached
Bank Name:
Account No:
ABA Routing/Transit No: See attached
Bank Name:
| PURCHASER: Stichting Depositary Apg Dev Markets Equity Pool/ Gef 875 Capital Strategy Fd |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | President, Endeavour Capital
Advisors Inc., investment advisory to Stichting Depositary Apg Dev Markets Equity Pool/ Gef 875 Capital Strategy Fd Contingent Shares Only |
|||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 2,716,129
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $4,209,999.95
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $4,209,999.95
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Stichting Depositary Apg Dev Markets Equity
Pool/Gef 875 Capital Strategy Fd; Xxxx Xxxxxxxxxxx 00, Xxxxxxx, xxx Xxxxxxxxxxx
Tax ID Number of Purchaser: N/A
Name under which Securities to be registered (including nominee name, if applicable): Stichting Depositary Apg Dev Markets Equity Pool/Gef 875 Capital Strategy Fd
Name under which Securities to be registered (including nominee name, if applicable): Stichting Depositary Apg Dev Markets Equity Pool/Gef 875 Capital Strategy Fd
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently
held beneficially by Purchaser zero
Notice Information: Endeavour Capital
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Street Address: 000 Xxxxxxxxx Xxxxxx
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
Email: xx@xxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No:
ABA Routing/Transit No: See attached.
Bank Name:
Account No:
ABA Routing/Transit No: See attached.
Bank Name:
| PURCHASER: Stichting Depositary Apg Dev Markets Equity Pool/ Gef 875 Capital Strategy Fd |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | President, Endeavour Capital
Advisors Inc., investment advisory to Stichting Depositary Apg Dev Markets Equity Pool/ Gef 875 Capital Strategy Fd Contingent Shares Only |
|||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 2,716,129
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $4,209,999.95
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased: $1.55
Non-Contingent Shares Subscribed: $
Total Purchase Price: $4,209,999.95
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: L.P./U.S.A.
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Stieven Financial Investors, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): Stieven Financial Investors, L.P.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information:
Street Address: 00000 Xxxxxxxxxxx Xx., Xxxxx 000, Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: 000-000-0000
Email: xxx.x@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00000 Xxxxxxxxxxx Xx., Xxxxx 000, Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: 000-000-0000
Email: xxx.x@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
FFC Account Name: Stieven Financial Investors L.P.
FFC Account No: 000000000
ABA Routing/Transit No: 000000000
Bank Name: XX Xxxxxx Xxxxx
City: New York
A/C #: 066642426
Entity Name: Xxxxxxx Sachs & Co.
FFC Account No: 000000000
ABA Routing/Transit No: 000000000
Bank Name: XX Xxxxxx Xxxxx
City: New York
A/C #: 066642426
Entity Name: Xxxxxxx Sachs & Co.
| PURCHASER: [Name] |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Member of the General Partner
Stieven Capital G.P. LLC |
|||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 616
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Corporation/Cayman Islands
Tax ID Number of Purchaser: N/A (Cayman Corp)
Name under which Securities to be registered (including nominee name, if applicable): Stieven Financial Offshore Investors, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Tax ID Number of Purchaser: N/A (Cayman Corp)
Name under which Securities to be registered (including nominee name, if applicable): Stieven Financial Offshore Investors, Ltd.
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 0
Notice Information:
Street Address: 00000 Xxxxxxxxxxx Xx., Xxxxx 000, Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: 000-000-0000
Email: xxx.x@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Street Address: 00000 Xxxxxxxxxxx Xx., Xxxxx 000, Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: 000-000-0000
Email: xxx.x@xxxxxxxxxxxxxx.xxx
Telephone: 000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
FFC Account Name: Stieven Financial Offshore Investors, Ltd.
FFC Account No: 000000000
ABA Routing/Transit No: 000000000
Bank Name: XX Xxxxxx Xxxxx
City: New York
A/C #: 066642426
Entity Name: Xxxxxxx Sachs & Co.
FFC Account No: 000000000
ABA Routing/Transit No: 000000000
Bank Name: XX Xxxxxx Xxxxx
City: New York
A/C #: 066642426
Entity Name: Xxxxxxx Sachs & Co.
| PURCHASER: [Name] |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director of the Inv. Mngr. Stieven Capital Advisors, L.P. |
|||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 108
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Bermuda
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 64,900
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 64,900
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
Account Name:
Account No: See attached spreadsheet
ABA Routing/Transit No:
Bank Name:
Account No: See attached spreadsheet
ABA Routing/Transit No:
Bank Name:
Total Number of Shares Subscribed: See attached.
Contingent Shares:
Non-Contingent Shares:
Contingent Shares:
Non-Contingent Shares:
| PURCHASER: | ||||||||
| Wolf Creek Investors (Bermuda) L.P. | ||||||||
| By: | Wellington Management Company, LLP, as its | |||||||
| investment adviser | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxx | |||||||
| Title: | Vice President & Counsel | |||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 701
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Investment Agreement
Purchaser Signature Page
Purchaser Signature Page
TO BE COMPLETED BY PURCHASER ONLY:
Form of organization and jurisdiction of organization of Purchaser: Limited Partnership/Delaware
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 65,495
Tax ID Number of Purchaser: 00-0000000
Name under which Securities to be registered (including nominee name, if applicable): See attached spreadsheet
Shares of Company Common Stock (or securities convertible into or exchangeable for Common Stock) currently held beneficially by Purchaser 65,495
Notice Information: x/x Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx, XXX
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Xxxxxx Address: 00 Xxxxx Xxxxxx; Xxxxxx, XX 00000
Attention: Legal and Compliance – Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
Telephone: 000-000-0000/000-000-0000
Indicate by “X” if Purchaser is a “Section 1.2(c) Purchaser”:
Wire Instructions for Each Purchaser’s Account
| Account Name: | ||||
| Account No: | See attached spreadsheet | |||
| ABA Routing/Transit No: | ||||
| Bank Name: | ||||
| See attached. | ||||
| Total Number of Shares Subscribed: | ||||
| Contingent Shares: | ||||
| Non-Contingent Shares: |
| PURCHASER: | ||||||||
| Wolf Creek Partners, L.P. | ||||||||
| By: | Wellington Management Company, LLP, as its | |||||||
| investment adviser | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxx | |||||||
| Title: | Vice President & Counsel | |||||||
TO BE COMPLETED BY COMPANY ONLY:
Total Number of Shares Subscribed and Accepted: 687
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Price per Share of Convertible Preferred Stock purchased:
Non-Contingent Shares Subscribed: $
Total Purchase Price: $
Is Purchaser an “Institutional Investor?”:
Purchaser Signature Page
To be Completed by Institutional Investor Only
To be Completed by Institutional Investor Only
List of Common Accounts (see Section 2.3(d)), including legal name (and if applicable, nominee
name) and Tax ID (and if applicable, nominee Tax ID) of each Account if shares are to be registered
to each account.
Exhibit A-1
Form of Preferred Stock Articles of Amendment
Series B Preferred Stock
Series B Preferred Stock
SEACOAST BANKING CORPORATION OF FLORIDA
ARTICLES OF AMENDMENT
to the
AMENDED AND RESTATED ARTICLES OF INCORPORATION
DESIGNATING
MANDATORILY CONVERTIBLE NONCUMULATIVE NONVOTING PREFERRED STOCK, SERIES B
SEACOAST BANKING CORPORATION OF FLORIDA, a corporation organized and existing under the laws
of the State of Florida (the “Corporation”), in accordance with the provisions of Section
607.0602 of the Florida Business Corporation Act (the “FBCA”) thereof, hereby certifies:
I.
The name of the Corporation is “Seacoast Banking Corporation of Florida.”
II.
The Corporation’s Board of Directors, in accordance with the Corporation’s Amended and
Restated Articles of Incorporation, as amended (the “Articles”) and bylaws, as amended (the
“Bylaws”) and applicable law, including Sections 607.0602 and 607.0621 of the FBCA, has
adopted the following resolution on April 7, 2010 for the purpose of designating and establishing a
series of shares of $0.10 par value preferred stock of the Corporation designated as “Mandatorily
Convertible Noncumulative Nonvoting Preferred Stock, Series B”:
RESOLVED, that pursuant to the Corporation’s Articles and Bylaws and applicable law, a series
of Preferred Stock, par value $0.10 per share, of the Corporation be and hereby is created, and
that the designation and number of shares of such series, and the voting and other powers,
preferences and relative, participating, optional or other rights, and the qualifications,
limitations and restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. There is hereby created out of the authorized and unissued shares of
preferred stock of the Corporation a series of preferred stock designated as the “Mandatorily
Convertible Noncumulative Nonvoting Preferred Stock, Series B”, $0.10 par value per share (the
“Series B Preferred Stock”).
Section 2. Number of Shares. The total number of authorized shares of Series B Preferred
Stock shall be 50,000 shares, which may from time to time be increased or decreased (but not below
the number then outstanding) by the Corporation’s Board of Directors.
Section 3. Definitions. As used herein, the following terms shall have the meanings
specified below:
“Average VWAP” means the average of the VWAP for each Trading Day in the relevant
period.
“Board” or “Board of Directors” means the Corporation’s board of directors or,
with respect to any action to be taken by such board of directors, any committee of the board of
directors duly authorized to take such action.
“Business Day” means any day, other than a Saturday or a Sunday, that is neither a
legal holiday nor a day on which banking institutions in New York, New York or Stuart, Florida are
authorized or required by law, regulation or executive order to close.
“Common Stock” means the common stock, par value $0.10 per share, of the Corporation.
“Conversion” means a Mandatory Conversion.
“Conversion Date” has the meaning set forth in Section 5(a).
“Conversion Rate” means, initially, 689.6552 shares of Common Stock per share of
Series B Preferred Stock issuable upon Conversion, based on an initial Conversion Price of $1.45
per share of Common Stock, and is subject to adjustment as provided herein.
“Conversion Price” means the Liquidation Amount per share of Series B Preferred Stock
divided by the Conversion Rate then in effect. The initial Conversion Price is $1.45.
“Current Market Price” of the Common Stock on any day, means the Average VWAP of the
Common Stock for the 10 consecutive Trading Days ending on the earlier of the day in question and
the day before the ex-date or other specified date with respect to the issuance or distribution
requiring such computation, appropriately adjusted to take into account the occurrence during such
period of any event described in clauses (i) through (vi) of Section 6(e). For purposes of this
definition, “ex-date” means the first date on which the shares of the Common Stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive an
issuance or distribution.
“Depositary” means DTC or its nominee, Cede & Co., or any successor appointed by the
Corporation.
“Dividend Payment Date” means April 15 and October 15 of each year, commencing
October 15, 2010.
“Dividend Payment Commencement Date” means October 15, 2010.
“Dividend Period” means the period commencing on and including a Dividend Payment Date
(or, with respect to the first Dividend Period, commencing on and including the Issue Date) and
ending on and including the day immediately preceding the next succeeding Dividend Payment Date.
“Dividend Threshold Amount” has the meaning set forth in Section 6(h)(D).
“DTC” means The Depository Trust Company.
“Holder” means the Person in whose name the shares of the Series B Preferred Stock are
registered, which may be treated by the Corporation and the Transfer Agent as the absolute owner of
the shares of Series B Preferred Stock for the purpose of making payment and settling conversions
and for all other purposes.
“Issue Date” means the first date of issuance of shares of Series B Preferred Stock.
“Junior Stock” means the Common Stock and any other class or series of stock of the
Corporation issued in the future unless the terms of which expressly provide that it ranks senior
to, or on a parity with, Series B Preferred Stock as to rights dividend rights and/or as to on
liquidation, dissolution or winding up of the Corporation.
“Liquidation Amount” means, initially, $1,000 per share of Series B Preferred Stock
(as subsequently adjusted for any split, subdivision, combination, consolidation, recapitalization
or similar event with respect to the Series B Preferred Stock).
“Liquidation Preference” has the meaning set forth in Section 10(a).
“Mandatory Conversion” has the meaning set forth in Section 5(a).
“Market Disruption Event” means any of the following events has occurred: (i) any
suspension of, or limitation imposed on, trading by the relevant exchange or quotation system
during any period or periods aggregating one half-hour or longer and whether by reason of movements
in price exceeding limits permitted by the relevant exchange or quotation system or otherwise
relating to the Common Stock or in futures or option contracts relating to the Common Stock on the
relevant exchange or quotation system, (ii) any event (other than a failure to open or a closure as
described below) that disrupts or impairs the ability of market participants during any period or
periods aggregating one half-hour or longer in general to effect transactions in, or obtain market
values for, the Common Stock on the relevant exchange or quotation system or futures or options
contracts relating to the Common Stock on any relevant exchange or quotation system, or (iii) the
failure to open of the exchange or quotation system on which the Common Stock or futures or options
contracts relating to the Common Stock are traded or the closure of such exchange or quotation
system prior to its respective scheduled closing time for the regular trading session on such day
(without regard to after hours or other trading outside the regular trading session hours) unless
such earlier closing time is announced by such exchange or quotation system at least one hour prior
to the earlier of the actual closing time for the regular trading session on such day and the
submission deadline for orders to be entered into such exchange or quotation system for execution
at the actual closing time on such day.
“Nasdaq” means the Nasdaq Global Select Market or other Nasdaq market in which the
Corporation’s Common Stock is then traded.
“Notice of Mandatory Conversion” has the meaning set forth in Section 5(b).
“Parity Stock” means the Corporation’s Series A Preferred Stock, Series C Preferred
Stock and any class or series of stock of the Corporation (other than the Series B Preferred Stock)
authorized in the future the terms of which expressly provide that such class or series will rank
on a parity with Series B Preferred Stock as to dividend rights and/or as to rights on liquidation,
dissolution or winding up of the Corporation (in each case without regard to whether dividends
accrue cumulatively or noncumulatively).
“Person” means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company or trust.
“Preferred Director” has the meaning set forth in Section 13(d).
“Preferred Stock” means any and all series of the Corporation’s preferred stock,
including the Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock.
“Record Date” means, (i) with respect to payment of dividends on outstanding shares of
Series B Preferred Stock, the 1st calendar day immediately preceding the relevant Dividend Payment
Date or such other record date fixed by the Board of Directors that is not more than 60 nor less
than 10 days prior to such Dividend Payment Date, and (ii), for purpose of an adjustment to the
Conversion Rate pursuant to Section 6, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other property, the date
fixed for determination of holders of the Common Stock entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by statute, contract or
otherwise).
“Record Holder” means, as to any day, the Holder of record of outstanding shares of
Series B Preferred Stock as they appear on the stock register of the Corporation at the close of
business on such day.
“Registrar” means the Transfer Agent.
“Regulatory Approvals” with respect to any Holder, means the collective reference, to
the extent applicable and required to permit such Holder to convert such Holder’s shares of Series
B Preferred Stock into Common Stock and to own such Common Stock without such Holder being in
violation of applicable law, the receipt of approvals and authorizations of, filings and
registrations with, notifications to, or expiration or termination of any applicable waiting period
under, the federal Bank Holding Company Act of 1956, as amended (the “BHC
Act”), the federal Change in Bank Control Act (the “CIBC Act”) or any similar
state laws, Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or the competition or merger
control laws of other jurisdictions, in each case to the extent necessary to permit such Holder to
convert such shares of Series B Preferred Stock and own shares of Common Stock pursuant to these
Articles of Amendment.
“Reorganization Event” has the meaning set forth in Section 7.
“Series A Preferred Stock” means the Corporation’s Fixed Rate Perpetual Stock, Series
A, designated and authorized by the Corporation on December 18, 2008.
“Series A Preferred Stock Articles of Amendment” means the Articles of Amendment to
the Articles filed by the Corporation to the Florida Department of State on December 18, 2008
designating Series A Preferred Stock.
“Series B Preferred Stock Certificates” has the meaning set forth in Section 20.
“Series C Preferred Stock” means the Corporation’s Mandatorily Convertible
Noncumulative Nonvoting Preferred Stock, Series C, if designated and authorized by the Corporation
as Parity Stock.
“Shareholder Approvals” means all shareholder approvals necessary to (i)
approve the issuance of Common Stock upon the Mandatory Conversion for purposes of Rule 5635
of the Nasdaq Listing Rules, and (ii) amend the Articles to increase the number of
authorized shares of Common Stock to permit the Mandatory Conversion in full and to provide
additional authorized shares of Common Stock for general corporate purposes.
“Trading Day” means any day on which (i) there is no Market Disruption Event and (ii)
the Nasdaq is open for trading, or, if the Common Stock (or any other securities, cash or other
property into which shares of the Series B Preferred Stock becomes convertible in connection with
any Reorganization Event) is not listed on the Nasdaq, any day on which the principal national
securities exchange or trading system on which the Common Stock (or such other property) is listed
or traded is open for trading, or, if the Common Stock (or such other property) is not listed on a
national securities exchange or traded on a trading system, any Business Day. A “Trading
Day” only includes those days that have a scheduled closing time of 4:00 P.M. Eastern Time or
the then standard closing time for regular trading on the relevant exchange or trading system.
“Transfer Agent” means Continental Stock Transfer & Trust Co., subject to the
appointment of a successor transfer agent as provided in Section 19.
“U.S. Alien Holder” means a Holder that is not treated as a United States person for
U.S. federal income tax purposes as defined under Section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended from time to time.
“Voting Parity Stock” means, with regard to any matter as to which the holders of
Series B Preferred Stock are entitled to vote as specified in Section 13(a) and (d) of these
Articles of Amendment, any and all series of Parity Stock upon which like voting rights have been
conferred and are exercisable with respect to such matter.
“VWAP” means, on any Trading Day the volume weighted average price per share of Common
Stock as displayed on Bloomberg (or any successor service) in respect of the period from 9:30 A.M.
to 4:00 P.M., Eastern Time, on such Trading Day; or, if such price is not available, the volume
weighted average price means the market value per share of our Common Stock on such trading day as
determined by a nationally recognized independent investment banking firm retained by us for this
purpose.
Section 4. Dividends.
(a) Commencing on the Issue Date, Holders of shares of outstanding Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of
the Corporation legally available therefor, noncumulative dividends in arrears at the rate per
annum of 15% per share on the Liquidation Amount (equivalent to $150.00 per annum per share),
payable semi-annually on each Dividend Payment Date beginning on the Dividend Payment Commencement
Date until the Conversion Date. If, as provided in Section 5(a) below, any outstanding shares of
Series B Preferred Stock are not converted on the Conversion Date, each such share of Series B
Preferred Stock, while outstanding, shall, upon and following the Conversion Date bear
noncumulative dividends payable, when, as and if declared by the Corporation’s board of directors,
at the same date and in amounts equal to the number of shares of Common Stock into which each
share of Series B Preferred Stock is then convertible, multiplied by the dividend declared and
payable per share of Common Stock. Dividends will be payable on a Dividend Payment Date to
Holders that are Record Holders of the applicable Record Date with respect to such Dividend
Payment Date, but only to the extent a dividend has been declared to be payable on such Dividend
Payment Date. If any Dividend Payment Date is not a Business Day, the dividend payable on such
date shall be paid on the next Business Day without adjustment and without interest.
Accumulations of dividends on shares of Series B Preferred Stock shall not bear interest.
Dividends payable for any period other than a full Dividend Period (based on the number of actual
days elapsed during the period) shall be computed on the basis of days elapsed over a 360-day year
consisting of twelve 30-day months.
(b) Dividends on the Series B Preferred Stock are not cumulative. To the extent that the
Board of Directors does not declare and pay dividends on the Series B Preferred Stock for a
Dividend Period prior to the related Dividend Payment Date, in full or otherwise, such unpaid
dividend shall not accrue and shall cease to be payable. The Corporation shall have no obligation
to pay dividends for such Dividend Period after the Dividend Payment Date for such Dividend Period
or to pay interest (or any other sum of money in lieu of interest) with respect to such dividends,
whether or not the Corporation declares dividends on the Series B Preferred Stock for any
subsequent Dividend Period.
(c) Prior to the Conversion, no dividend shall be declared or paid upon, or any sum set apart
for the payment of dividends upon, any outstanding share of any Junior Stock.
(d) So long as any share of Series B Preferred Stock remains outstanding, no dividend or
distribution shall be declared or paid on the Common Stock or any other shares of Junior Stock
(other than dividends payable solely in shares of Common Stock) or Parity Stock, subject to this
Section 4(d) in the case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall
be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the
Corporation or any of its subsidiaries unless all dividends on all outstanding shares of the
Series B Preferred Stock for any Dividend Period have been declared and paid in full (or have been
declared and a sum sufficient for the payment thereof has been set aside for the benefit of the
Holders of shares of Series B Preferred Stock on the applicable Record Date). The foregoing
limitation shall not apply to (i) any dividends or distributions of rights or Junior Stock in
connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to
any shareholders’ rights plan; (ii) the acquisition by the Corporation or any of its subsidiaries
of record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other
persons (other than for the beneficial ownership by the Corporation or any of its subsidiaries),
including as trustees or custodians; and (iii) the exchange or conversion of Junior Stock for or
into other Junior Stock or of Parity Stock for or into other Parity Stock (with the same or lesser
aggregate liquidation amount) or Junior Stock, in each case, solely to the extent required
pursuant to binding contractual agreements entered into prior to the Issue Date or any subsequent
agreement for the accelerated exercise, settlement or exchange thereof for Common Stock.
(e) When dividends are not paid (or declared and a sum sufficient for payment thereof set
aside for the benefit of the Holders thereof on the applicable Record Date) on any Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to
such Dividend Payment Date) in full upon shares of Series B Preferred Stock and any shares of
Parity Stock, all dividends declared on shares of Series B Preferred Stock and all such Parity
Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment date falling
within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata
so that the respective amounts of such dividends declared shall bear the same ratio to each other
as full dividends payable on the Series B Preferred Stock for such Dividend Period and all Parity
Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment date falling within
the Dividend Period related to such Dividend Payment Date) (subject to their having been declared
by the Board of Directors out of legally available funds and including, in the case of Parity
Stock that bears cumulative dividends, all accrued but unpaid dividends) bear to each other. If
the Board of Directors determines not to pay any dividend or a full dividend on a Dividend Payment
Date, the Corporation will provide written notice to the Holders of shares of Series B Preferred
Stock prior to such Dividend Payment Date.
(f) Notwithstanding anything contained in the immediately preceding paragraph, if, at any
Dividend Payment Date, the Corporation is prohibited by applicable governmental or regulatory
authority from paying dividends on the Series B Preferred Stock, but is permitted to pay dividends
on the Corporation’s outstanding Series A Preferred Stock, the Corporation may pay dividends on
shares of the Series A Preferred Stock without giving pro rata effect to accrued dividends with
respect to the Series B Preferred Stock.
(g) If the Conversion Date with respect to any share of Series B Preferred Stock is on or
prior to the Dividend Payment Commencement Date, the Holder of such share of Series B Preferred
Stock will not have any right to receive any dividends on the Series B Preferred Stock with respect
to such Dividend Period, whether upon Conversion or otherwise.
(h) All dividends on shares of Series B Preferred Stock, whether or not for a current Dividend
Period or any prior Dividend Period, paid on shares of Series B Preferred Stock shall be made in
cash. No fractional shares of Common Stock shall be delivered to Holders in payment or partial
payment of a dividend.
(i) Prior to the close of business on the Conversion Date, shares of Common Stock issuable
upon the Mandatory Conversion thereof, or other securities issuable upon conversion of, such share
of Series B Preferred Stock shall not be deemed outstanding for any purpose, and the Holder thereof
shall have no rights with respect to the Common Stock or other securities issuable upon conversion
(including voting rights, rights to respond to tender offers for the Common Stock) by virtue of
holding such share of Series B Preferred Stock.
Section 5. Mandatory Conversion; Conversion Procedures.
(a) Effective as of the close of business on the fifth (5th) Business Day
following the date on which the Shareholder Approvals have been received (the “Conversion
Date”) with respect to Series B Preferred Stock, all shares of Series B Preferred Stock shall
automatically convert into shares of Common Stock as set forth below (the “Mandatory
Conversion”). The number of shares of Common Stock into which a share of Series B Preferred
Stock shall be convertible shall be determined by dividing the Liquidation Amount by the
Conversion Price (subject to the conversion procedures of Section 6 hereof) plus cash in lieu of
fractional shares in accordance with Section 9 hereof; provided that, notwithstanding anything to
the contrary contained in these Articles of Amendment, the number of shares of Common Stock to be
issued to any Holder pursuant to these Articles of Amendment shall be issued to the extent (but
only to the extent) that the issuance of such shares of Common Stock would not (i) cause or result
in such Holder and its Affiliates, collectively, being deemed to own, control or have the power to
vote or dispose of securities which would represent more than 9.99% of the voting securities of
any class or series of the Corporation’s capital stock outstanding at such time, (ii) otherwise
cause such Holder or any of its Affiliates to be required to file a notice or application for
approval under the BHC Act, the CIBC Act or any similar state or federal statute or (iii) require
such Holder or any of its Affiliates to obtain the prior approval of any bank regulator
(collectively, the “Ownership Limit”); provided, further, that any shares of Common Stock that
would otherwise be issued to the Holder upon conversion of shares of Series B Preferred Stock held
by such Holder, but cannot be issued to such Holder at the time of conversion as a result of the
Ownership Limit, shall thereafter be issued to such Holder on the first date on which such
issuance would not cause or result in a violation of the Ownership Limit, and, provided further,
that such restriction or conversion shall not apply to any bank holding company controlling the
Corporation as of the date hereof. Upon the Conversion Date, the certificate representing shares
of Series B Preferred Stock shall represent solely the right to receive the number of shares of
Common Stock (plus cash in lieu of fractional shares) issuable upon the Conversion Date for each
share of Series B Preferred Stock held.
(b) Upon receipt of the Shareholder Approvals, the Corporation shall provide, within one (1)
Business Day thereafter, notice of conversion to each Holder (such notice a “Notice of
Mandatory Conversion”). In addition to any information required by applicable law or
regulation, the Notice of Mandatory Conversion with respect to such Holder shall state, as
appropriate:
| (i) | the Conversion Date; | ||
| (ii) | a form of letter of transmittal to completed and returned to the Transfer Agent; | ||
| (iii) | the number of shares of Common Stock (plus cash in lieu of fractional shares, if any) to be issued upon conversion of each share of Series B Preferred Stock held of record by such Holder and subject to such Mandatory Conversion; and | ||
| (iv) | the place or places where Series B Preferred Stock Certificates (if held in certificated form) held of record by such Holder are to be surrendered for issuance of certificates representing shares of Common Stock. |
(c) If the Holder specifies in the letter of transmittal that shares of Common Stock issuable
upon Conversion of shares of Series B Preferred Stock shall be issued to a Person other than the
Holder surrendering the shares of Series B Preferred Stock being converted, then the Holder shall
pay or cause to be paid any transfer or similar taxes payable in connection with the shares of
Common Stock so issued. In the event that such Holder fails to surrender the required number of
shares within 30 days after the Conversion Date, the Corporation shall, by written notice to such
Holder, indicate which shares have been converted pursuant to Section 5(a).
(d) Upon receipt by the Transfer Agent of a completed and duly executed letter of transmittal
as set forth in Section 5(b), compliance with Section 5(c), if applicable, and surrender of the
Series B Preferred Stock Certificate(s) to be converted (if held in certificated form), the
Corporation shall, within two (2) Business Days following the receipt of certificate surrendered
for issuance of Common Stock, subject to (i) the receipt of a written notice from a Holder of the
receipt of necessary Regulatory Approval, if any is applicable, and (ii) if required, the
furnishing of appropriate endorsements and transfer documents and the payment of all transfer and
similar taxes, issue and shall instruct the Transfer Agent to register the number of shares of
Common Stock to which such Holder shall be entitled upon conversion in the name(s) of such Holder
or the name(s) specified by such Holder in the completed letter of transmittal, if any.
Section 6. Certain Conversion Procedures and Adjustments.
(a) On any Conversion Date, dividends shall no longer be declared or paid on any such shares
of Series B Preferred Stock for the current Dividend Period and any prior Dividend Periods and any
shares of Series B Preferred Stock shall cease to be outstanding, in each case, subject to the
right of Holders of such shares to receive solely (i) the number of shares of Common Stock into
which such shares of Series B Preferred Stock are convertible, (ii) any declared and unpaid
dividends on such share to the extent provided in Section 4, and (iii) and payment to which they
are entitled pursuant to Sections 5 and 9, as applicable.
(b) No allowance or adjustment, except as set forth in this Section 6, shall be made in
respect of dividends payable to holders of Common Stock of record as of any date prior to such
applicable Conversion Date. Prior to such applicable Conversion Date, shares of Common Stock
issuable upon conversion of any shares of Series B Preferred Stock shall not be deemed outstanding
for any purpose, and Holders of shares of Series B Preferred Stock shall have no rights as holders
or otherwise with respect to the Common Stock (including voting rights, rights to respond to
tender offers for the Common Stock and rights to receive any dividends or other distributions on
the Common Stock) by virtue of holding shares of Series B Preferred Stock.
(c) Shares of Series B Preferred Stock duly converted in accordance herewith, or otherwise
reacquired by the Corporation, shall 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 B may be reissued only as shares of any series of Preferred Stock other than Series B
Preferred Stock).
(d) The Person or Persons entitled to receive the Common Stock and/or cash, securities or
other property issuable upon conversion of Series B Preferred Stock shall be treated for all
purposes as the Record Holder(s) of such shares of Common Stock and/or securities as of the close
of business on the Conversion Date with respect thereto. In the event that a Holder shall not by
written notice designate the name in which shares of Common Stock and/or cash, securities or other
property (including payments of cash in lieu of fractional shares) to be issued or paid upon
conversion of shares of Series B Preferred Stock should be registered or paid or the manner in
which such shares should be delivered, the Corporation shall be entitled to register and deliver
such shares, and make such payment, in the name of the Holder and in the manner shown on the
records of the Corporation.
(e) The Conversion Rate shall be adjusted from time to time as follows:
| (i) | If the Shareholder Approvals are not received within 75 calendar days following the Issue Date, the Conversion Price will be decreased (in addition to any other adjustments pursuant to this Section 6) by 10% effective as of 76th day following the Issue Date and the Conversion Rate shall concurrently be adjusted to give effect to such change. | ||
| (ii) | If the Corporation issues Common Stock as a dividend or distribution on the Common Stock to all holders of the Common Stock (other than in connection with a Reorganization Event), or if the Corporation effects a share split or share combination of the Common Stock, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [OS1 /OS0] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
OS0
|
= | the number of shares of Common Stock outstanding at the close of business on the Record Date prior to giving effect to such event | ||
OS1
|
= | the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event. |
| Any adjustment made pursuant to this clause (ii) shall become effective on the date that is immediately after (x) the Record Date or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this clause (ii) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. |
| (iii) | If the Corporation issues to all holders of Common Stock any rights, warrants, options or other securities (other than rights issued pursuant to a shareholder rights plan or rights or warrants issued in connection with a Reorganization Event) entitling them for a period of not more than 60 days after the date of issuance thereof to subscribe for or purchase shares of Common Stock, or if the Corporation issues to all holders of Common Stock securities convertible into Common Stock for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share of Common Stock less than the Current Market Price of the Common Stock on the Record Date, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(OS0 + X) / (OS0 + Y)] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
OS0
|
= | the number of shares of Common Stock outstanding at the close of business on the Record Date | ||
X
|
= | the total number of shares of Common Stock issuable pursuant to such rights, warrants, options, other securities or convertible securities (or upon conversion of such securities) | ||
Y
|
= | the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities (or the conversion price for such securities paid upon conversion) and (B) the Current Market Price per share of Common Stock immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. |
| For purposes of this clause (iii), in determining whether any rights, warrants, options, other securities or convertible securities entitle the holders to subscribe for or purchase, or exercise a conversion right for, Common Stock at less than the applicable Current Market Price per share of Common Stock on the applicable date, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration the Corporation receives for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors. If any right, warrant, option, other security or convertible security described in this clause (iii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the |
| Conversion Rate that would then be in effect if such right, warrant, option, other security or convertible security had not been so issued. | |||
| Any adjustment made pursuant to this clause (iii) shall become effective on the date that is immediately after the Record Date. | |||
| (iv) | (A) If the Corporation distributes capital stock (other than Common Stock), evidences of indebtedness or other assets or property of the Corporation to all holders of the Common Stock, excluding: |
| (x) | dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in clause (ii) or (iii) above, | ||
| (y) | dividends or distributions paid exclusively in cash, and | ||
| (z) | Spin-Offs (as described below), | ||
| then the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [SP0 /(SP0 - FMV)] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
SP0
|
= | the Current Market Price of the Common Stock on the Record Date | ||
FMV
|
= | the fair market value (as determined in good faith by the Board of Directors) of the capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Record Date. |
| provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Corporation is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Series B Preferred Stock shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Corporation are distributed to holders of Common Stock, for each share of Series B Preferred Stock, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Corporation such holder of Series B Preferred Stock would have received had such holder of Series B Preferred Stock owned a number of shares of Common Stock into which such Series B Preferred Stock is then convertible at the conversion rate in effect on the Record Date for such distribution. |
| An adjustment to the Conversion Rate made pursuant to this clause (iv)(A) shall be made successively whenever any such distribution is made and shall become effective on the Record Date. | |||
| (B) | If the Corporation distributes to all holders of the Common Stock, capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation (a “Spin-Off”), the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(FMV0 + MP0) /MP0] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
FMV0
|
= | the average volume weighted average price of the capital stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock for the 10 consecutive Trading Days commencing on, and including, the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to the Common Stock on the Nasdaq or such other national or regional exchange or association or over-the-counter market or if not so traded or quoted, the fair market value (as determined in good faith by the Board of Directors) of the capital stock or similar equity interests distributed to holders of the Common Stock applicable to one share of the Common Stock | ||
MP0
|
= | the Average VWAP of the Common Stock for the 10 consecutive Trading Days commencing on, and including, the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to the Common Stock on the Nasdaq or such other U.S. national or regional exchange or market that is at that time the principal exchange or market for the Common Stock. |
| An adjustment to the Conversion Rate made pursuant to this clause (iv)(B) will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days immediately following and including the date of the Spin-Off, references with respect to the Spin-Off to “the 10 consecutive Trading Days” shall be deemed replaced with a period of consecutive Trading Days containing such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date and the adjustment in respect of such conversion shall occur immediately prior to the conversion. |
| If any such dividend or distribution described in this clause (iv) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. | |||
| (v) | If the Corporation pays or makes any dividend or distribution consisting exclusively of cash to all holders of Common Stock in excess of regular quarterly dividends equal to the Dividend Threshold Amount, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [SP0 /(SP0 - C)] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
SP0
|
= | the Current Market Price of the Common Stock as of the Record Date | ||
C
|
= | the excess of the amount in cash per share that the Corporation distributes to holders of the Common Stock over the Dividend Threshold Amount. |
| An adjustment to the Conversion Rate made pursuant to this clause (v) shall become effective on the date fixed for determination of the holders of Common Stock entitled to receive such dividend or distribution. If any dividend or distribution described in this clause (v) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. | |||
| (vi) | If the Corporation or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for the Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Current Market Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(FMV + (SP1 × OS1)) / (SP1 × OS0)] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Expiration Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Expiration Date | ||
FMV
|
= | The fair market value (as determined in good faith by the Board of Directors) on the Expiration Date, of the |
| aggregate value of all cash and any other consideration paid or payable for the Common Stock validly tendered or exchanged and not withdrawn as of the Expiration Date (the “Purchased Shares”) | ||||
OS0
|
= | the number of shares of Common Stock outstanding on the Expiration Date, including any Purchased Shares | ||
OS1
|
= | the number of shares of Common Stock outstanding on the Expiration Date, excluding any Purchased Shares | ||
SP1
|
= | the Average VWAP of the Common Stock for the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the Expiration Date. |
| If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to such Conversion Rate will be made. Any adjustment to a Conversion Rate made pursuant to this clause (vi) shall become effective on the date immediately following the last Trading Day included in the determination of the Average VWAP of the Common Stock for purposes of SP1 above; provided that in respect of any conversion within the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references to the “10 consecutive Trading Days” with respect to this clause (vi) shall be deemed replaced with a period of consecutive Trading Days containing such lesser number of Trading Days as have elapsed between the Expiration Date and the Conversion Date, and the adjustment in respect of such conversion shall occur immediately prior to the conversion. If the Corporation or one of its subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made. | |||
| (vii) | If the Corporation has in effect a shareholder rights plan while any shares of Series B Preferred Stock remain outstanding, Holders of Series B Preferred Stock will receive, upon a conversion of Series B Preferred Stock, in addition to Common Stock, rights under the Corporation’s shareholder rights agreement unless, prior to such conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the shareholder rights plan have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Series B Preferred Stock would not be entitled to receive any rights in respect of the Common Stock, if any, that the Corporation is required to deliver upon conversion of Series B Preferred Stock, the Conversion Rate will be adjusted at the time of separation as if the Corporation had distributed to all holders of the Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to clause (iv) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. A distribution of rights pursuant to a shareholder rights plan will not trigger an adjustment to the Conversion Rates pursuant to clauses (iii) or (iv) above. |
(f) The Corporation may make such increases in the Conversion Rate, in addition to any other
increases required by this Section 6, if the Board of Directors deems it advisable in order to
avoid or diminish any income tax to holders of the Common Stock resulting from any dividend or
distribution of the Corporation’s shares (or issuance of rights or warrants to acquire shares) or
from any event treated as such for income tax purposes or for any other reasons. If any
adjustment to the Conversion Rate is treated as a distribution to any U.S. Alien Holder which is
subject to withholding tax, the Corporation (or Transfer Agent or any paying agent on behalf of
the Corporation) may set off any withholding tax that is required to be collected with respect to
such deemed distribution against cash payments and other distributions otherwise deliverable to
such Holder.
(g) No adjustment in any Conversion Rate will be required unless the adjustment would require
an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made
because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment
that is not made will be carried forward and taken into account in any future adjustment. All
required calculations will be made to the nearest cent or 1/10,000th of a share. Notwithstanding
the foregoing, all adjustments not previously made shall have effect with respect to the
Conversion. No adjustment to the Conversion Rates need be made if Holders may participate in the
transaction that would otherwise give rise to such adjustment, so long as the distributed assets
or securities the Holders would receive upon conversion of shares of Series B Preferred Stock—if
such assets or securities are convertible, exchangeable or exercisable—are convertible,
exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period
of at least 45 days following conversion of shares of Series B Preferred Stock.
(h) The applicable Conversion Rate shall not be adjusted:
| (A) | upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Corporation’s securities and the investment of additional optional amounts in the Common Stock under any plan; | ||
| (B) | upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan, employee agreement or arrangement or program of the Corporation; | ||
| (C) | upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the Issue Date; | ||
| (D) | as a result of payment of regular quarterly dividends on the Common Stock not in excess of $0.10 per share (the “Dividend Threshold Amount”); | ||
| (E) | for a change in the par value of the Common Stock; or | ||
| (F) | as a result of a tender offer solely to holders of fewer than 100 shares of the Common Stock. |
(i) The Corporation shall have the power to resolve any ambiguity and its action in so doing,
as evidenced by a resolution of the Board, shall be final and conclusive unless clearly
inconsistent with the intent hereof.
(j) Whenever the Conversion Rate, is to be adjusted, the Corporation shall: (i) compute such
adjusted Conversion Rate and prepare and transmit to the Transfer Agent an Officers’ Certificate
setting forth such adjusted Conversion Rate, the method of calculation thereof in reasonable
detail and the facts requiring such adjustment and upon which such adjustment is based; (ii) as
soon as practicable following the determination of a revised Conversion Rate, provide, or cause to
be provided, a written notice to the Holders of shares of Series
B Preferred Stock of the occurrence of such event and (iii) as soon as practicable following
the determination of a revised Conversion Rate, provide, or cause to be provided, to the Holders
of shares of Series B Preferred Stock, a statement setting forth in reasonable detail the method
by which the adjustment to the Conversion Rate, as applicable, was determined and setting forth
such revised Conversion Rate. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
Section 7. Reorganization Events.
(a) In the event that any of the following events occurs prior to the Conversion Date:
| (i) | any consolidation or merger of the Corporation with or into another Person (other than a merger or consolidation in which the Corporation is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Corporation or another Person), | ||
| (ii) | any sale, transfer, lease or conveyance to another Person of all or substantially all of the Corporation’s property and assets, or | ||
| (iii) | any reclassification of the Common Stock into securities including securities other than the Common Stock (any such event specified in paragraphs (a) through (c) of this Section 7, a “Reorganization Event”), |
then each share of Series B Preferred Stock outstanding immediately prior to such Reorganization
Event shall, without the consent of the Holders thereof, remain outstanding but shall at each
Holder’s option, subject to the applicable rules of Nasdaq Global Select Market or any other
national securities exchange or automated quotation system where the Common Stock is listed and
other applicable laws and regulations, upon the effective date and time (“Reorganization
Effective Time”) of such Reorganization Event, be convertible into the kind of securities, cash
and other property receivable in such Reorganization Event (without any interest thereon and
without any right to dividends or distributions thereon which have a record date that is prior to
the Reorganization Event) per share of Common Stock (the “Exchange Property”) as if the
Holder of such share of Series B Preferred Stock had converted such share into Common Stock
immediately prior to such Reorganization Event and exercised his rights of election, if any, as to
the kind or amount of securities, cash and other property receivable upon such Reorganization Event
(provided that if the kind or amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held immediately prior to such
Reorganization Event and in respect of which such rights of election shall have been exercised
(“Electing Share”), then, for the purpose of this Section 7 the kind and amount of
securities, cash and other property receivable upon such Reorganization Event by the holder of each
Electing Share shall be deemed to be the weighted average of the kinds and amounts so receivable
per share by the holders of the Electing Shares). The amount of Exchange Property receivable upon
any Reorganization Event shall be determined based upon the Conversion Rate in effect on such
Reorganization Effective Time.
The above provisions of this Section 7 shall similarly apply to successive Reorganization
Events and the provisions of Section 8 shall apply to any shares of capital stock of the
Corporation (or any successor) received by the holders of Common Stock in any such Reorganization
Event.
The Corporation (or any successor) shall, within 20 days of the Effective Time of any
Reorganization Event, provide written notice to the Holders of the occurrence of such event and of
the kind and amount of the cash, securities or other property that constitute the Exchange
Property. Failure to deliver such notice shall not affect the operation of this Section 7.
The Corporation shall not enter into any agreement for a transaction constituting a
Reorganization Event unless such agreement provides for or does not interfere with or prevent (as
applicable) conversion of the Series B Preferred Stock into the Exchange Property in a manner that
is consistent with and gives effect to this Section 7.
Section 8. Reservation of Common Stock.
(a) Following the receipt of the Shareholder Approvals, the Corporation shall at all times
reserve and keep available out of its authorized and unissued Common Stock or shares held in the
treasury of the Corporation, solely for issuance upon the conversion of shares of Series B
Preferred Stock as herein provided, free from any preemptive or other similar rights, such number
of shares of Common Stock as shall from time to time be issuable upon the conversion of all the
shares of Series B Preferred Stock then outstanding. For purposes of this Section 8 (a), the
number of shares of Common Stock that shall be deliverable upon the conversion of all outstanding
shares of Series B Preferred Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single Holder.
(b) Notwithstanding the foregoing, the Corporation shall be entitled to deliver upon
conversion of shares of Series B Preferred Stock, as herein provided, shares of Common Stock
reacquired and held in the treasury of the Corporation (in lieu of the issuance of authorized and
unissued shares of Common Stock), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances (other than liens, charges, security interests
and other encumbrances created by the Holders).
(c) All shares of Common Stock delivered upon conversion of the Series B Preferred Stock
shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all
liens, claims, security interests and other encumbrances (other than liens, charges, security
interests and other encumbrances created by the Holders).
(d) Prior to the delivery of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series B Preferred Stock, the Corporation shall use its reasonable
best efforts to comply with all federal and state laws and regulations thereunder requiring the
registration of such securities with, or any approval of or consent to the delivery thereof by,
any governmental or regulatory authority.
(e) The Corporation hereby covenants and agrees that, if at any time the Common Stock shall
be listed on the Nasdaq Capital Market or any other national securities exchange or automated
quotation system, the Corporation shall, if permitted by the rules of such exchange or automated
quotation system, list and keep listed, so long as the Common Stock shall be so listed on such
exchange or automated quotation system, all Common Stock issuable upon conversion of the Series B
Preferred Stock; provided, however, that if the rules of such exchange or automated quotation
system permit the Corporation to defer the listing of such Common Stock until the first conversion
of shares of Series B Preferred Stock into Common Stock in accordance with the provisions hereof,
the Corporation covenants to list such Common Stock issuable upon conversion of shares of Series
B Preferred Stock in accordance with the requirements of such exchange or automated quotation
system at such time.
Section 9. Fractional Shares.
(a) No fractional shares of Common Stock shall be issued as a result of any conversion of
shares of Series B Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in respect of any
Conversion, the Corporation shall at its option either (i) issue to such Holder an amount of
shares rounded up to the next whole share of Common Stock or (ii) pay an amount in cash (computed
to the nearest cent) equal to the same fraction of the Current Market Price of the Common Stock as
of the end of the Trading Day preceding the Conversion Date.
(c) If more than one share of the Series B Preferred Stock is surrendered for conversion at
one time by or for the same Holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of shares of the Series
B Preferred Stock so surrendered.
Section 10. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary,
each Holder of shares of Series B Preferred Stock shall be entitled to receive for each share of
Series B Preferred Stock, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the Corporation, subject to the
rights of any creditors of the Corporation, before any distribution of such assets or proceeds is
made to or set aside for the holders of Common Stock and any other Junior Stock of the
Corporation, payment in full in an amount equal to the sum of (i) Liquidation Amount per share of
Series B Preferred Stock and (ii) any declared and unpaid dividends on such share to the extent
provided in Section 4 (all such amounts collectively, the “Liquidation Preference”).
(b) Partial Payment. If in any distribution described in Section 10(a) of the
Corporation’s assets or the proceeds thereof are not sufficient to pay in full the amounts payable
with respect to all outstanding shares of Series B Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with Series B Preferred
Stock as to such distribution, Holders of Series B Preferred Stock and the holders of such other
stock shall share ratably in any such distribution in proportion to the full respective
distributions (including, if applicable, dividends on such amount) to which they are entitled.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to
all Holders of Series B Preferred Stock and the corresponding amounts payable with respect of any
other stock of the Corporation ranking equally with Series B Preferred Stock as to such
distribution has been paid in full, the Holders of the Series B Preferred Stock will have no right
or claim to any of the remaining assets of the Corporation (or proceeds thereof).
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this
Section 11, the merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the Holders of shares of Series B Preferred
Stock receive cash, securities or other property for their shares, or the sale, lease, or exchange
(for cash, securities or other property) or pledge of all or substantially all of the assets of
the Corporation, shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 11. No Sinking Fund. The shares of Series B Preferred Stock will not be subject to
any mandatory redemption, sinking fund or other similar provisions. Holders of shares of Series B
Preferred Stock will have no right to require redemption or repurchase of any shares of Series B
Preferred Stock.
Section 12. Status of Repurchased Shares. Shares of Series B Preferred Stock that are
converted into Common Stock or repurchased or otherwise acquired by the Corporation shall revert to
authorized but unissued shares of Preferred Stock undesignated as to series (provided that any such
cancelled shares of Series B Preferred Stock may be reissued only as shares of any series of
Preferred Stock other than Series B Preferred Stock).
Section 13. Voting Rights.
(a) General. The Holders of shares of Series B Preferred Stock shall not have any
voting rights except as set forth below or as otherwise from time to time required by law.
Holders of shares of Series B Preferred Stock will be entitled to one vote for each such share on
any matter on which Holders of shares of Series B Preferred Stock are entitled to vote, including
any action by written consent.
(b) Voting Rights as to Particular Matters. So long as any shares of Series B
Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required
by law or by the Articles, the affirmative vote or consent of the Holders of at least 66 2/3% of
the shares of Series B Preferred Stock at the time outstanding, voting as a separate class, given
in person or by proxy, by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
| (i) | Authorization of Senior Stock. Any amendment or alteration of the Articles or any articles of amendment thereto to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock of the Corporation ranking senior to the Series B Preferred Stock with respect to either or both the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up of the Corporation; | ||
| (ii) | Amendment of Series B Preferred Stock. Any amendment, alteration or repeal of any provision of the Articles or these Articles of Amendment thereto (including, unless no vote on such merger or consolidation is required by clause (iii) below, any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or voting powers of shares of Series B Preferred Stock; or | ||
| (iii) | Share Exchanges, Reclassifications, Mergers and Consolidations. Any consummation of a binding share exchange or reclassification involving the shares of Series B Preferred Stock, or of a merger or consolidation of the Corporation with another corporation or other entity, unless in each case (x) the shares of Series B Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and limitations and restrictions thereof, of shares of Series B Preferred Stock immediately prior to such consummation, taken as a whole; |
provided, however, that for all purposes of this Section 13(b), the creation and issuance, or an
increase in the authorized or issued amount, whether pursuant to preemptive or similar rights or
otherwise, of any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking equally with and/or
junior to Series B Preferred Stock with respect to the payment of dividends (whether such dividends
are cumulative or noncumulative) and the distribution of assets upon liquidation, dissolution or
winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or consent of, the Holders
of outstanding shares of the Series B Preferred Stock.
(c) Procedures for Voting and Consents. The rules and procedures for calling and
conducting any meeting of the Holders of Series B Preferred Stock (including, without limitation,
the fixing of a record date in connection therewith), the solicitation and use of proxies at such
a meeting, the obtaining of written consents and any other aspect or matter with regard to such a
meeting or such consents shall be governed by any rules of the Board of Directors, in its
discretion, may adopt from time to time, which rules and procedures shall conform to the
requirements of the Corporation’s Articles, the Bylaws and applicable law and the rules of any
national securities exchange or other trading facility on which Series B Preferred Stock is listed
or traded at the time.
(d) Preferred Stock Directors. Whenever, at any time or times, dividends payable on
the shares of Series B Preferred Stock, if any shares of Series B Preferred Stock remain
outstanding, have not been paid for an aggregate of three or more Dividend Periods, in each case
whether or not consecutive, the authorized number of directors of the Corporation shall
automatically be increased by two and the holders of the Series B Preferred Stock shall have the
right, together with holders of any one or more other classes or series of Voting Parity Stock
outstanding at the time, voting together as a class, to elect two directors (the “Preferred
Directors” and each a “Preferred Director”) to fill such newly created directorships
at the Corporation’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
Dividend Periods, including the latest completed Dividend Period, on all outstanding shares of
Series B Preferred Stock have been declared and paid in full.
Further, if any other class or series of Voting Parity Stock at any time has the right to
elect such a Preferred Director, holders of Series B Preferred Stock will have the right, together
with holders of all classes or series of Voting Parity Stock, to elect such Preferred Director.
The voting rights with respect to such Preferred Directors are subject to the terms and limitations
of such rights set forth in the Series A Preferred Stock Articles of Amendment.
Section 14. Record Holders. To the fullest extent permitted by applicable law, the
Corporation and the Transfer Agent may deem and treat the Record Holder of any share of Series B
Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation
nor such transfer agent shall be affected by any notice to the contrary.
Section 15. Notices. All notices or communications in respect of Series B Preferred Stock
shall be sufficiently given if given in writing and delivered in person or by first class mail,
postage prepaid, or if given in such other manner as may be permitted in these Articles of
Amendment, in the Articles or Bylaws or by applicable law. Notwithstanding the foregoing, if
shares of Series B Preferred Stock are issued in book-entry form through DTC or any similar
facility, such notices may be given to the Holders of Series B Preferred Stock in any manner
permitted by such facility.
Section 16. No Preemptive Rights; No Redemption Rights. No share of Series B Preferred Stock
shall have any preemptive rights whatsoever as to any securities of the Corporation, or any
warrants, rights or options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or granted. No holder
of shares of Series B Preferred Stock shall have at any time the right to put such shares of
Series B Preferred Stock to the Corporation or to have the Corporation redeem any shares of
Series B Preferred Stock.
Section 17. Redemption by the Corporation. The Series B Preferred Stock shall not be
redeemable by the Corporation. In all events, any repurchase or redemption of Series B Preferred
Stock shall be subject to the prior approval of the Corporation’s primary federal banking
regulator, if required by applicable law or regulation or if such approval is a requirement to the
Series B Preferred Stock being classified as Tier 1 capital (or the equivalent) for bank regulatory
purposes, together with any other required regulatory approvals.
Section 18. Replacement Stock Certificates. If any of the Series B Preferred Stock
Certificates shall be mutilated, lost, stolen or destroyed, the Corporation shall, at the expense
of the Holder, issue, in exchange and in substitution for and upon cancellation of the mutilated
Series B Preferred Stock Certificate, or in lieu of and substitution for the Series B Preferred
Stock Certificate lost, stolen or destroyed, a new Series B Preferred Stock Certificate of like
tenor and representing an equivalent amount of shares of Series B Preferred Stock, but only upon
receipt of evidence of such loss, theft or destruction of such Series B Preferred Stock Certificate
and indemnity, if requested, satisfactory to the Corporation and the Transfer Agent.
Section 19. Transfer Agent, Registrar, Conversion and Dividend Paying Agent. The duly
appointed transfer agent, registrar, conversion and dividend paying agent for shares of Series B
Preferred Stock shall be the Transfer Agent. The Corporation may, in its sole discretion, remove
the Transfer Agent in accordance with the agreement between the Corporation and the Transfer Agent;
provided that the Corporation shall appoint a successor transfer agent who shall accept such
appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the
Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders of
shares of Series B Preferred Stock.
Section 20. Form. The Series B Preferred Stock shall be issued in the form of one or more
definitive shares in fully registered form in substantially the form attached hereto as Exhibit
A (each, a “Series B Preferred Stock Certificate”), which is hereby incorporated in and
expressly made a part of these Articles of Amendment. Each Series B Preferred Stock Certificate
shall reflect the number of shares of Series B Preferred Stock represented thereby, and may have
notations, legends or endorsements required by law, stock exchange rules, agreements to which the
Corporation is subject, if any, or usage (provided that any such notation, legend or endorsement is
in a
form acceptable to the Corporation). Each Series B Preferred Stock Certificate shall be
registered in the name or names of the Person or Persons specified by the Depositary in a written
instrument to the Registrar.
A duly authorized officer of the Corporation shall sign each Series B Preferred Stock
Certificate for the Corporation, in accordance with the Corporation’s Bylaws and applicable law, by
manual or facsimile signature. If an officer whose signature is on a Series B Preferred Stock
Certificate no longer holds that office at the time the Transfer Agent countersigned the Series B
Preferred Stock Certificate, the Series B Preferred Stock Certificate shall be valid nevertheless.
A Series B Preferred Stock Certificate shall not be valid until an authorized signatory of the
Transfer Agent manually countersigns Series B Preferred Stock Certificate. Each Series B Preferred
Stock Certificate shall be dated the date of its countersignature.
Section 21. Stock Transfer and Stamp Taxes. The Corporation shall pay any and all stock
transfer and documentary stamp taxes that may be payable in respect of any issuance or delivery of
shares of Series B Preferred Stock or shares of Common Stock or other securities issued on account
of Series B Preferred Stock pursuant hereto or certificates representing such shares or securities.
The Corporation shall not, however, be required to pay any such tax that may be payable in respect
of any transfer involved in the issuance or delivery of shares of Series B Preferred Stock or
Common Stock or other securities in a name other than that in which the shares of Series B
Preferred Stock with respect to which such shares or other securities are issued or delivered were
registered, or in respect of any payment to any person other than a payment to the Holder thereof,
and shall not be required to make any such issuance, delivery or payment unless and until the
person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of the Corporation, that such tax
has been paid or is not payable.
Section 22. Other Rights. The shares of Series B Preferred Stock shall not have any rights,
preferences, privileges or voting powers or relative, participating, optional or other special
rights, or qualifications, limitations or restrictions thereof, other than as set forth herein, or
in the Articles or as provided by applicable law.
III.
These Articles of Amendment were duly adopted by the Board of Directors on April 7, 2010.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Corporation has authorized and caused these Articles of Amendment to
be signed by its Chairman and Chief Executive Officer as of April 8, 2010.
| SEACOAST BANKING CORPORATION OF FLORIDA | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chairman & Chief Executive Officer | |||||
Exhibit A
| Number | Shares | |
| PA[ ] | [Number of Shares] |
SEACOAST BANKING CORPORATION OF FLORIDA
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
| THIS CERTIFIES THAT | NAME | CUSIP 811707 504 | ||
| is the owner of | [NUMBER OF SHARES] |
FULLY PAID AND NON-ASSESSABLE SHARES OF MANDATORILY CONVERTIBLE NONCUMULATIVE
NONVOTING PREFERRED STOCK, SERIES B, $0.10 PAR VALUE OF
SEACOAST BANKING CORPORATION OF FLORIDA,
transferable on the books of the Corporation by the holder hereof, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and
shall be subject to all of the provisions of the Articles of Incorporation, as amended, and By-laws of the Corporation
as now or hereafter amended to all of which the holder hereof by acceptance hereby assents.
NONVOTING PREFERRED STOCK, SERIES B, $0.10 PAR VALUE OF
SEACOAST BANKING CORPORATION OF FLORIDA,
transferable on the books of the Corporation by the holder hereof, in person or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and
shall be subject to all of the provisions of the Articles of Incorporation, as amended, and By-laws of the Corporation
as now or hereafter amended to all of which the holder hereof by acceptance hereby assents.
This certificate is not valid unless countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly
authorized officers.
Dated:
/s/ Xxxxxx X. Xxxxxx, III
|
||
EXECUTIVE OFFICER |
||
/s/ Xxxxxx Xxxx
|
||
SECRETARY |
[CORPORATE SEAL]
COUNTERSIGNED AND
REGISTERED
Continental Stock Transfer & Trust
Co.
REGISTERED
Continental Stock Transfer & Trust
Co.
TRANSFER AGENT AND
REGISTRAR
REGISTRAR
By: |
||||
SEACOAST BANKING CORPORATION OF FLORIDA
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK
AND ARE NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER OF THE CORPORATION WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR SPECIAL
RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. SUCH REQUEST SHOULD BE ADDRESSED TO
THE CORPORATION OR THE TRANSFER AGENT.
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATING
THERETO UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS
SET FORTH IN AN INVESTMENT AGREEMENT, EFFECTIVE AS OF THE EFFECTIVENESS DATE THEREOF, COPIES OF
WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AT THE CORPORATION’S PRINCIPAL EXECUTIVE
OFFICES.
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM — as tenants in common
|
UNIF GIFT MIN ACT- | Custodian | ||||||||
| (Cust) | (Minor) |
| under Uniform Gifts to Minors Act | ||||||||||
| (State) |
||||||||||
TEN ENT — as tenants by the entireties
JT TEN — as joint tenants with right of
survivorship and not as tenants in common
JT TEN — as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
| PLEASE INSERT SOCIAL SECURITY OR | ||||
| OTHER | ||||
| IDENTIFYING NUMBER OF ASSIGNEE | ||||
| For value received, do hereby sell, assign and transfer unto | ||||
| Shares of the Mandatorily Convertible Noncumulative Nonvoting Preferred Stock, Series B, represented by the within Certificate, and do hereby irrevocably constitute and appoint |
Attorney
to transfer the Shares on the books of the within-named Corporation with full power of substitution
in the premises.
Dated:
THE SIGNATURE(S) SHOULD BE
GUARANTEED BY
AN “ELIGIBLE GUARANTOR INSTITUTION”
GUARANTEED BY
AN “ELIGIBLE GUARANTOR INSTITUTION”
Notice: The signature(s) to this assignment
must correspond with the name(s) as written
upon the face of the certificate, in every
particular, without alternation or enlargement,
or any change whatever.
must correspond with the name(s) as written
upon the face of the certificate, in every
particular, without alternation or enlargement,
or any change whatever.
WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM
PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
SIGNATURE GUARANTEED BY:
SIGNATURE GUARANTEE MEDALLION PROGRAM
PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
SIGNATURE GUARANTEED BY:
Exhibit A-2
Form of Preferred Stock Articles of Amendment
Series C Preferred Stock
Series C Preferred Stock
SEACOAST BANKING CORPORATION OF FLORIDA
ARTICLES OF AMENDMENT
to the
AMENDED AND RESTATED ARTICLES OF INCORPORATION
DESIGNATING
MANDATORILY CONVERTIBLE NONCUMULATIVE NONVOTING PREFERRED STOCK, SERIES C
SEACOAST BANKING CORPORATION OF FLORIDA, a corporation organized and existing under the laws
of the State of Florida (the “Corporation”), in accordance with the provisions of Section
607.0602 of the Florida Business Corporation Act (the “FBCA”) thereof, hereby certifies:
I.
The name of the Corporation is “Seacoast Banking Corporation of Florida.”
II.
The Corporation’s Board of Directors, in accordance with the Corporation’s Amended and
Restated Articles of Incorporation, as amended (the “Articles”) and bylaws, as amended (the
“Bylaws”) and applicable law, including Sections 607.0602 and 607.0621 of the FBCA, has
adopted the following resolution on April 7, 2010 for the purpose of designating and establishing a
series of shares of $0.10 par value preferred stock of the Corporation designated as “Mandatorily
Convertible Noncumulative Nonvoting Preferred Stock, Series C”:
RESOLVED, that pursuant to the Corporation’s Articles and Bylaws and applicable law, a series
of Preferred Stock, par value $0.10 per share, of the Corporation be and hereby is created, and
that the designation and number of shares of such series, and the voting and other powers,
preferences and relative, participating, optional or other rights, and the qualifications,
limitations and restrictions thereof, of the shares of such series, are as follows:
Section 1. Designation. There is hereby created out of the authorized and unissued shares of
preferred stock of the Corporation a series of preferred stock designated as the “Mandatorily
Convertible Noncumulative Nonvoting Preferred Stock, Series C”, $0.10 par value per share (the
“Series C Preferred Stock”).
Section 2. Number of Shares. The total number of authorized shares of Series C Preferred
Stock shall be 200,000 shares, which may from time to time be increased or decreased (but not below
the number then outstanding) by the Corporation’s Board of Directors.
Section 3. Definitions. As used herein, the following terms shall have the meanings
specified below:
“Average VWAP” means the average of the VWAP for each Trading Day in the relevant
period.
“Board” or “Board of Directors” means the Corporation’s board of directors or,
with respect to any action to be taken by such board of directors, any committee of the board of
directors duly authorized to take such action.
“Business Day” means any day, other than a Saturday or a Sunday, that is neither a
legal holiday nor a day on which banking institutions in New York, New York or Stuart, Florida are
authorized or required by law, regulation or executive order to close.
“Common Stock” means the common stock, par value $0.10 per share, of the Corporation.
“Conversion” means a Mandatory Conversion.
“Conversion Date” has the meaning set forth in Section 5(a).
“Conversion Rate” means, initially, 645.1613 shares of Common Stock per share of
Series C Preferred Stock issuable upon Conversion, based on an initial Conversion Price of $1.55
per share of Common Stock, and is subject to adjustment as provided herein.
“Conversion Price” means the Liquidation Amount per share of Series C Preferred Stock
divided by the Conversion Rate then in effect. The initial Conversion Price is $1.55.
“Current Market Price” of the Common Stock on any day, means the Average VWAP of the
Common Stock for the 10 consecutive Trading Days ending on the earlier of the day in question and
the day before the ex-date or other specified date with respect to the issuance or distribution
requiring such computation, appropriately adjusted to take into account the occurrence during such
period of any event described in clauses (i) through (vi) of Section 6(e). For purposes of this
definition, “ex-date” means the first date on which the shares of the Common Stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive an
issuance or distribution.
“Depositary” means DTC or its nominee, Cede & Co., or any successor appointed by the
Corporation.
“Dividend Payment Date” means April 15 and October 15 of each year, commencing
October 15, 2010.
“Dividend Payment Commencement Date” means October 15, 2010.
“Dividend Period” means the period commencing on and including a Dividend Payment Date
(or, with respect to the first Dividend Period, commencing on and including the Issue Date) and
ending on and including the day immediately preceding the next succeeding Dividend Payment Date.
“Dividend Threshold Amount” has the meaning set forth in Section 6(h)(D).
“DTC” means The Depository Trust Company.
“Holder” means the Person in whose name the shares of the Series C Preferred Stock are
registered, which may be treated by the Corporation and the Transfer Agent as the absolute owner of
the shares of Series C Preferred Stock for the purpose of making payment and settling conversions
and for all other purposes.
“Issue Date” means the first date of issuance of shares of Series C Preferred Stock.
“Junior Stock” means the Common Stock and any other class or series of stock of the
Corporation issued in the future unless the terms of which expressly provide that it ranks senior
to, or on a parity with, Series C Preferred Stock as to rights dividend rights and/or as to on
liquidation, dissolution or winding up of the Corporation.
“Liquidation Amount” means, initially, $1,000 per share of Series C Preferred Stock
(as subsequently adjusted for any split, subdivision, combination, consolidation, recapitalization
or similar event with respect to the Series C Preferred Stock).
“Liquidation Preference” has the meaning set forth in Section 10(a).
“Mandatory Conversion” has the meaning set forth in Section 5(a).
“Market Disruption Event” means any of the following events has occurred: (i) any
suspension of, or limitation imposed on, trading by the relevant exchange or quotation system
during any period or periods aggregating one half-hour or longer and whether by reason of movements
in price exceeding limits permitted by the relevant exchange or quotation system or otherwise
relating to the Common Stock or in futures or option contracts relating to the Common Stock on the
relevant exchange or quotation system, (ii) any event (other than a failure to open or a closure as
described below) that disrupts or impairs the ability of market participants during any period or
periods aggregating one half-hour or longer in general to effect transactions in, or obtain market
values for, the Common Stock on the relevant exchange or quotation system or futures or options
contracts relating to the Common Stock on any relevant exchange or quotation system, or (iii) the
failure to open of the exchange or quotation system on which the Common Stock or futures or options
contracts relating to the Common Stock are traded or the closure of such exchange or quotation
system prior to its respective scheduled closing time for the regular trading session on such day
(without regard to after hours or other trading outside the regular trading session hours) unless
such earlier closing time is announced by such exchange or quotation system at least one hour prior
to the earlier of the actual closing time for the regular trading session on such day and the
submission deadline for orders to be entered into such exchange or quotation system for execution
at the actual closing time on such day.
“Nasdaq” means the Nasdaq Global Select Market or other Nasdaq market in which the
Corporation’s Common Stock is then traded.
“Notice of Mandatory Conversion” has the meaning set forth in Section 5(b).
“Parity Stock” means the Corporation’s Series A Preferred Stock, Series B Preferred
Stock and any class or series of stock of the Corporation (other than the Series C Preferred Stock)
authorized in the future the terms of which expressly provide that such class or series will rank
on a parity with Series C Preferred Stock as to dividend rights and/or as to rights on liquidation,
dissolution or winding up of the Corporation (in each case without regard to whether dividends
accrue cumulatively or noncumulatively).
“Person” means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability company or trust.
“Preferred Director” has the meaning set forth in Section 13(d).
“Preferred Stock” means any and all series of the Corporation’s preferred stock,
including the Series A Preferred Stock, the Series B Preferred Stock and the Series C Preferred
Stock.
“Record Date” means, (i) with respect to payment of dividends on outstanding shares of
Series C Preferred Stock, the 1st calendar day immediately preceding the relevant Dividend Payment
Date or such other record date fixed by the Board of Directors that is not more than 60 nor less
than 10 days prior to such Dividend Payment Date, and (ii), for purpose of an adjustment to the
Conversion Rate pursuant to Section 6, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other property, the date
fixed for determination of holders of the Common Stock entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of Directors or by statute, contract or
otherwise).
“Record Holder” means, as to any day, the Holder of record of outstanding shares of
Series C Preferred Stock as they appear on the stock register of the Corporation at the close of
business on such day.
“Registrar” means the Transfer Agent.
“Regulatory Approvals” with respect to any Holder, means the collective reference, to
the extent applicable and required to permit such Holder to convert such Holder’s shares of Series
C Preferred Stock into Common Stock and to own such Common Stock without such Holder being in
violation of applicable law, the receipt of approvals and authorizations of, filings and
registrations with, notifications to, or expiration or termination of any applicable waiting period
under, the federal Bank Holding Company Act of 1956, as amended (the “BHC
Act”), the federal Change in Bank Control Act (the “CIBC Act”) or any similar
state laws, Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 or the competition or merger
control laws of other jurisdictions, in each case to the extent necessary to permit such Holder to
convert such shares of Series C Preferred Stock and own shares of Common Stock pursuant to these
Articles of Amendment.
“Reorganization Event” has the meaning set forth in Section 7.
“Series A Preferred Stock” means the Corporation’s Fixed Rate Perpetual Stock, Series
A, designated and authorized by the Corporation on December 18, 2008.
“Series A Preferred Stock Articles of Amendment” means the Articles of Amendment to
the Articles filed by the Corporation to the Florida Department of State on December 18, 2008
designating Series A Preferred Stock.
“Series B Preferred Stock” means the Corporation’s Mandatorily Convertible
Noncumulative Nonvoting Preferred Stock, Series B, designated and authorized by the Corporation
previously.
“Series C Preferred Stock Certificates” has the meaning set forth in Section 20.
“Shareholder Approvals” means all shareholder approvals necessary to (i) approve the
issuance of Common Stock upon the Mandatory Conversion for purposes of Rule 5635 of the Nasdaq
Listing Rules, and (ii) amend the Articles to increase the number of authorized shares of Common
Stock to permit the Mandatory Conversion in full and to provide additional authorized shares of
Common Stock for general corporate purposes.
“Trading Day” means any day on which (i) there is no Market Disruption Event and (ii)
the Nasdaq is open for trading, or, if the Common Stock (or any other securities, cash or other
property into which shares of the Series C Preferred Stock becomes convertible in connection with
any Reorganization Event) is not listed on the Nasdaq, any day on which the principal national
securities exchange or trading system on which the Common Stock (or such other property) is listed
or traded is open for trading, or, if the Common Stock (or such other property) is not listed on a
national securities exchange or traded on a trading system, any Business Day. A “Trading
Day” only includes those days that have a scheduled closing time of 4:00 P.M. Eastern Time or
the then standard closing time for regular trading on the relevant exchange or trading system.
“Transfer Agent” means Continental Stock Transfer & Trust Co., subject to the
appointment of a successor transfer agent as provided in Section 19.
“U.S. Alien Holder” means a Holder that is not treated as a United States person for
U.S. federal income tax purposes as defined under Section 7701(a)(30) of the Internal Revenue Code
of 1986, as amended from time to time.
“Voting Parity Stock” means, with regard to any matter as to which the holders of
Series C Preferred Stock are entitled to vote as specified in Section 13(a) and (d) of these
Articles of Amendment, any and all series of Parity Stock upon which like voting rights have been
conferred and are exercisable with respect to such matter.
“VWAP” means, on any Trading Day the volume weighted average price per share of Common
Stock as displayed on Bloomberg (or any successor service) in respect of the period from 9:30 A.M.
to 4:00 P.M., Eastern Time, on such Trading Day; or, if such price is not available, the volume
weighted average price means the market value per share of our Common Stock on such trading day as
determined by a nationally recognized independent investment banking firm retained by us for this
purpose.
Section 4. Dividends.
(a) Commencing on the Issue Date, Holders of shares of outstanding Series C Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors out of funds of
the
Corporation legally available therefor, noncumulative dividends in arrears at the rate per
annum of 15% per share on the Liquidation Amount (equivalent to $150.00 per annum per share),
payable semi-annually on each Dividend Payment Date beginning on the Dividend Payment Commencement
Date until the Conversion Date. If, as provided in Section 5(a) below, any outstanding shares of
Series C Preferred Stock are not converted on the Conversion Date, each such share of Series C
Preferred Stock, while outstanding, shall, upon and following the Conversion Date bear
noncumulative dividends payable, when, as and if declared by the Corporation’s board of directors,
at the same date and in amounts equal to the number of shares of Common Stock into which each
share of Series C Preferred Stock is then convertible, multiplied by the dividend declared and
payable per share of Common Stock. Dividends will be payable on a Dividend Payment Date to
Holders that are Record Holders of the applicable Record Date with respect to such Dividend
Payment Date, but only to the extent a dividend has been declared to be payable on such Dividend
Payment Date. If any Dividend Payment Date is not a Business Day, the dividend payable on such
date shall be paid on the next Business Day without adjustment and without interest.
Accumulations of dividends on shares of Series C Preferred Stock shall not bear interest.
Dividends payable for any period other than a full Dividend Period (based on the number of actual
days elapsed during the period) shall be computed on the basis of days elapsed over a 360-day year
consisting of twelve 30-day months.
(b) Dividends on the Series C Preferred Stock are not cumulative. To the extent that the
Board of Directors does not declare and pay dividends on the Series C Preferred Stock for a
Dividend Period prior to the related Dividend Payment Date, in full or otherwise, such unpaid
dividend shall not accrue and shall cease to be payable. The Corporation shall have no obligation
to pay dividends for such Dividend Period after the Dividend Payment Date for such Dividend Period
or to pay interest (or any other sum of money in lieu of interest) with respect to such dividends,
whether or not the Corporation declares dividends on the Series C Preferred Stock for any
subsequent Dividend Period.
(c) Prior to the Conversion, no dividend shall be declared or paid upon, or any sum set apart
for the payment of dividends upon, any outstanding share of any Junior Stock.
(d) So long as any share of Series C Preferred Stock remains outstanding, no dividend or
distribution shall be declared or paid on the Common Stock or any other shares of Junior Stock
(other than dividends payable solely in shares of Common Stock) or Parity Stock, subject to this
Section 4(d) in the case of Parity Stock, and no Common Stock, Junior Stock or Parity Stock shall
be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the
Corporation or any of its subsidiaries unless all dividends on all outstanding shares of the
Series C Preferred Stock for any Dividend Period have been declared and paid in full (or have been
declared and a sum sufficient for the payment thereof has been set aside for the benefit of the
Holders of shares of Series C Preferred Stock on the applicable Record Date). The foregoing
limitation shall not apply to (i) any dividends or distributions of rights or Junior Stock in
connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to
any shareholders’ rights plan; (ii) the acquisition by the Corporation or any of its subsidiaries
of record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other
persons (other than for the beneficial ownership by the Corporation or any of its subsidiaries),
including as trustees or custodians; and (iii) the exchange or conversion of Junior Stock for or
into other Junior Stock or of Parity Stock for or into other Parity Stock (with the same or lesser
aggregate liquidation amount) or Junior Stock, in each case, solely to the extent required
pursuant to binding contractual agreements entered into prior to the Issue Date or any subsequent
agreement for the accelerated exercise, settlement or exchange thereof for Common Stock.
(e) When dividends are not paid (or declared and a sum sufficient for payment thereof set
aside for the benefit of the Holders thereof on the applicable Record Date) on any Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates different from the
Dividend Payment Dates, on a dividend payment date falling within a Dividend Period related to
such Dividend Payment Date) in full upon shares of Series C Preferred Stock and any shares of
Parity Stock, all dividends declared on shares of Series C Preferred Stock and all such Parity
Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment date falling within
the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the
respective amounts of such dividends declared shall bear the same ratio to each other as full
dividends payable on the Series C Preferred Stock for such Dividend Period and all Parity Stock
payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment
dates different from the Dividend Payment Dates,
on a dividend payment date falling within the Dividend Period related to such Dividend
Payment Date) (subject to their having been declared by the Board of Directors out of legally
available funds and including, in the case of Parity Stock that bears cumulative dividends, all
accrued but unpaid dividends) bear to each other. If the Board of Directors determines not to pay
any dividend or a full dividend on a Dividend Payment Date, the Corporation will provide written
notice to the Holders of shares of Series C Preferred Stock prior to such Dividend Payment Date.
(f) Notwithstanding anything contained in the immediately preceding paragraph, if, at any
Dividend Payment Date, the Corporation is prohibited by applicable governmental or regulatory
authority from paying dividends on the Series C Preferred Stock, but is permitted to pay dividends
on the Corporation’s outstanding Series A Preferred Stock, the Corporation may pay dividends
on shares of the Series A Preferred Stock without giving pro rata effect to accrued dividends with
respect to the Series C Preferred Stock.
(g) If the Conversion Date with respect to any share of Series C Preferred Stock is on or
prior to the Dividend Payment Commencement Date, the Holder of such share of Series C Preferred
Stock will not have any right to receive any dividends on the Series C Preferred Stock with respect
to such Dividend Period, whether upon Conversion or otherwise.
(h) All dividends on shares of Series C Preferred Stock, whether or not for a current Dividend
Period or any prior Dividend Period, paid on shares of Series C Preferred Stock shall be made in
cash. No fractional shares of Common Stock shall be delivered to Holders in payment or partial
payment of a dividend.
(i) Prior to the close of business on the Conversion Date, shares of Common Stock issuable
upon the Mandatory Conversion thereof, or other securities issuable upon conversion of, such share
of Series C Preferred Stock shall not be deemed outstanding for any purpose, and the Holder thereof
shall have no rights with respect to the Common Stock or other securities issuable upon conversion
(including voting rights, rights to respond to tender offers for the Common Stock) by virtue of
holding such share of Series C Preferred Stock.
Section 5. Mandatory Conversion; Conversion Procedures.
(a) Effective as of the close of business on the fifth (5th) Business Day
following the date on which the Shareholder Approvals have been received (the “Conversion
Date”) with respect to Series C Preferred Stock, all shares of Series C Preferred Stock shall
automatically convert into shares of Common Stock as set forth below (the “Mandatory
Conversion”). The number of shares of Common Stock into which a share of Series C Preferred
Stock shall be convertible shall be determined by dividing the Liquidation Amount by the
Conversion Price (subject to the conversion procedures of Section 6 hereof) plus cash in lieu of
fractional shares in accordance with Section 9 hereof; provided that, notwithstanding anything to
the contrary contained in these Articles of Amendment, the number of shares of Common Stock to be
issued to any Holder pursuant to these Articles of Amendment shall be issued to the extent (but
only to the extent) that the issuance of such shares of Common Stock would not (i) cause or result
in such Holder and its Affiliates, collectively, being deemed to own, control or have the power to
vote or dispose of securities which would represent more than 9.99% of the voting securities of
any class or series of the Corporation’s capital stock outstanding at such time, (ii) otherwise
cause such Holder or any of its Affiliates to be required to file a notice or application for
approval under the BHC Act, the CIBC Act or any similar state or federal statute or (iii) require
such Holder or any of its Affiliates to obtain the prior approval of any bank regulator
(collectively, the “Ownership Limit”); provided, further, that any shares of Common Stock that
would otherwise be issued to the Holder upon conversion of shares of Series C Preferred Stock held
by such Holder, but cannot be issued to such Holder at the time of conversion as a result of the
Ownership Limit, shall thereafter be issued to such Holder on the first date on which such
issuance would not cause or result in a violation of the Ownership Limit, and, provided further,
that such restriction or conversion shall not apply to any bank holding company controlling the
Corporation as of the date hereof. Upon the Conversion Date, the certificate representing shares
of Series C Preferred Stock shall represent solely the right to receive the number of shares of
Common Stock (plus cash in lieu of fractional shares) issuable upon the Conversion Date for each
share of Series C Preferred Stock held.
(b) Upon receipt of the Shareholder Approvals, the Corporation shall provide, within one (1)
Business Day thereafter, notice of conversion to each Holder (such notice a “Notice of
Mandatory
Conversion”). In addition to any information required by applicable law or
regulation, the Notice of Mandatory Conversion with respect to such Holder shall state, as
appropriate:
| (i) | the Conversion Date; | ||
| (ii) | a form of letter of transmittal to completed and returned to the Transfer Agent; | ||
| (iii) | the number of shares of Common Stock (plus cash in lieu of fractional shares, if any) to be issued upon conversion of each share of Series C Preferred Stock held of record by such Holder and subject to such Mandatory Conversion; and | ||
| (iv) | the place or places where Series C Preferred Stock Certificates (if held in certificated form) held of record by such Holder are to be surrendered for issuance of certificates representing shares of Common Stock. |
(c) If the Holder specifies in the letter of transmittal that shares of Common Stock issuable
upon Conversion of shares of Series C Preferred Stock shall be issued to a Person other than the
Holder surrendering the shares of Series C Preferred Stock being converted, then the Holder shall
pay or cause to be paid any transfer or similar taxes payable in connection with the shares of
Common Stock so issued. In the event that such Holder fails to surrender the required number of
shares within 30 days after the Conversion Date, the Corporation shall, by written notice to such
Holder, indicate which shares have been converted pursuant to Section 5(a).
(d) Upon receipt by the Transfer Agent of a completed and duly executed letter of transmittal
as set forth in Section 5(b), compliance with Section 5(c), if applicable, and surrender of the
Series C Preferred Stock Certificate(s) to be converted (if held in certificated form), the
Corporation shall, within two (2) Business Days following the receipt of certificate surrendered
for issuance of Common Stock, subject to (i) the receipt of a written notice from a Holder of the
receipt of necessary Regulatory Approval, if any is applicable, and (ii) if required, the
furnishing of appropriate endorsements and transfer documents and the payment of all transfer and
similar taxes, issue and shall instruct the Transfer Agent to register the number of shares of
Common Stock to which such Holder shall be entitled upon conversion in the name(s) of such Holder
or the name(s) specified by such Holder in the completed letter of transmittal, if any.
Section 6. Certain Conversion Procedures and Adjustments.
(a) On any Conversion Date, dividends shall no longer be declared or paid on any such shares
of Series C Preferred Stock for the current Dividend Period and any prior Dividend Periods and any
shares of Series C Preferred Stock shall cease to be outstanding, in each case, subject to the
right of Holders of such shares to receive solely (i) the number of shares of Common Stock into
which such shares of Series C Preferred Stock are convertible, (ii) any declared and unpaid
dividends on such share to the extent provided in Section 4, and (iii) and payment to which they
are entitled pursuant to Sections 5 and 9, as applicable.
(b) No allowance or adjustment, except as set forth in this Section 6, shall be made in
respect of dividends payable to holders of Common Stock of record as of any date prior to such
applicable Conversion Date. Prior to such applicable Conversion Date, shares of Common Stock
issuable upon conversion of any shares of Series C Preferred Stock shall not be deemed outstanding
for any purpose, and Holders of shares of Series C Preferred Stock shall have no rights as holders
or otherwise with respect to the Common Stock (including voting rights, rights to respond to
tender offers for the Common Stock and rights to receive any dividends or other distributions on
the Common Stock) by virtue of holding shares of Series C Preferred Stock.
(c) Shares of Series C Preferred Stock duly converted in accordance herewith, or otherwise
reacquired by the Corporation, shall 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 C may be reissued only as shares of any series of Preferred Stock other than
Series C Preferred Stock).
(d) The Person or Persons entitled to receive the Common Stock and/or cash, securities or
other property issuable upon conversion of Series C Preferred Stock shall be treated for all
purposes as the Record Holder(s) of such shares of Common Stock and/or securities as of the close
of business on the Conversion Date with respect thereto. In the event that a Holder shall not by
written notice designate the name in which shares of Common Stock and/or cash, securities or other
property (including payments of cash in lieu of fractional shares) to be issued or paid upon
conversion of shares of Series C Preferred Stock should be registered or paid or the manner in
which such shares should be delivered, the Corporation shall be entitled to register and deliver
such shares, and make such payment, in the name of the Holder and in the manner shown on the
records of the Corporation.
(e) The Conversion Rate shall be adjusted from time to time as follows:
| (i) | If the Shareholder Approvals are not received within 75 calendar days following the Issue Date, the Conversion Price will be decreased (in addition to any other adjustments pursuant to this Section 6) by 10% effective as of 76th day following the Issue Date and the Conversion Rate shall concurrently be adjusted to give effect to such change. | ||
| (ii) | If the Corporation issues Common Stock as a dividend or distribution on the Common Stock to all holders of the Common Stock (other than in connection with a Reorganization Event), or if the Corporation effects a share split or share combination of the Common Stock, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [OS1 /OS0] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
OS0
|
= | the number of shares of Common Stock outstanding at the close of business on the Record Date prior to giving effect to such event | ||
OS1
|
= | the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event. |
| Any adjustment made pursuant to this clause (ii) shall become effective on the date that is immediately after (x) the Record Date or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this clause (ii) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. | |||
| (iii) | If the Corporation issues to all holders of Common Stock any rights, warrants, options or other securities (other than rights issued pursuant to a shareholder rights plan or rights or warrants issued in connection with a Reorganization |
| Event) entitling them for a period of not more than 60 days after the date of issuance thereof to subscribe for or purchase shares of Common Stock, or if the Corporation issues to all holders of Common Stock securities convertible into Common Stock for a period of not more than 60 days after the date of issuance thereof, in either case at an exercise price per share of Common Stock or a conversion price per share of Common Stock less than the Current Market Price of the Common Stock on the Record Date, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(OS0 + X) / (OS0 + Y)] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
OS0
|
= | the number of shares of Common Stock outstanding at the close of business on the Record Date | ||
X
|
= | the total number of shares of Common Stock issuable pursuant to such rights, warrants, options, other securities or convertible securities (or upon conversion of such securities) | ||
Y
|
= | the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities (or the conversion price for such securities paid upon conversion) and (B) the Current Market Price per share of Common Stock immediately preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities. |
| For purposes of this clause (iii), in determining whether any rights, warrants, options, other securities or convertible securities entitle the holders to subscribe for or purchase, or exercise a conversion right for, Common Stock at less than the applicable Current Market Price per share of Common Stock on the applicable date, and in determining the aggregate exercise or conversion price payable for such Common Stock, there shall be taken into account any consideration the Corporation receives for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors. If any right, warrant, option, other security or convertible security described in this clause (iii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right, warrant, option, other security or convertible security had not been so issued. |
| Any adjustment made pursuant to this clause (iii) shall become effective on the date that is immediately after the Record Date. | |||
| (iv) | (A) If the Corporation distributes capital stock (other than Common Stock), evidences of indebtedness or other assets or property of the Corporation to all holders of the Common Stock, excluding: |
| (x) | dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in clause (ii) or (iii) above, | ||
| (y) | dividends or distributions paid exclusively in cash, and | ||
| (z) | Spin-Offs (as described below), | ||
| then the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [SP0 /(SP0 - FMV)] | ||
where |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
SP0
|
= | the Current Market Price of the Common Stock on the Record Date | ||
FMV
|
= | the fair market value (as determined in good faith by the Board of Directors) of the capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Record Date. |
| provided that if “FMV” with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Corporation is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Series C Preferred Stock shall have the right to receive on the date such shares of capital stock, evidences of indebtedness or other assets or property of the Corporation are distributed to holders of Common Stock, for each share of Series C Preferred Stock, the amount of shares of capital stock, evidences of indebtedness or other assets or property of the Corporation such holder of Series C Preferred Stock would have received had such holder of Series C Preferred Stock owned a number of shares of Common Stock into which such Series C Preferred Stock is then convertible at the conversion rate in effect on the Record Date for such distribution. | |||
| An adjustment to the Conversion Rate made pursuant to this clause (iv)(A) shall be made successively whenever any such distribution is made and shall become effective on the Record Date. |
| (B) If the Corporation distributes to all holders of the Common Stock, capital stock of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Corporation (a “Spin-Off”), the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(FMV0 + MP0) /MP0] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
FMV0
|
= | the average volume weighted average price of the capital stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock for the 10 consecutive Trading Days commencing on, and including, the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to the Common Stock on the Nasdaq or such other national or regional exchange or association or over-the-counter market or if not so traded or quoted, the fair market value (as determined in good faith by the Board of Directors) of the capital stock or similar equity interests distributed to holders of the Common Stock applicable to one share of the Common Stock | ||
MP0
|
= | the Average VWAP of the Common Stock for the 10 consecutive Trading Days commencing on, and including, the third Trading Day after the date on which “ex-distribution trading” commences for such dividend or distribution with respect to the Common Stock on the Nasdaq or such other U.S. national or regional exchange or market that is at that time the principal exchange or market for the Common Stock. |
| An adjustment to the Conversion Rate made pursuant to this clause (iv)(B) will occur on the 10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days immediately following and including the date of the Spin-Off, references with respect to the Spin-Off to “the 10 consecutive Trading Days” shall be deemed replaced with a period of consecutive Trading Days containing such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date and the adjustment in respect of such conversion shall occur immediately prior to the conversion. | |||
| If any such dividend or distribution described in this clause (iv) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. |
| (v) | If the Corporation pays or makes any dividend or distribution consisting exclusively of cash to all holders of Common Stock in excess of regular quarterly dividends equal to the Dividend Threshold Amount, the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [SP0 /(SP0 - C)] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Record Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Record Date | ||
SP0
|
= | the Current Market Price of the Common Stock as of the Record Date | ||
C
|
= | the excess of the amount in cash per share that the Corporation distributes to holders of the Common Stock over the Dividend Threshold Amount. |
| An adjustment to the Conversion Rate made pursuant to this clause (v) shall become effective on the date fixed for determination of the holders of Common Stock entitled to receive such dividend or distribution. If any dividend or distribution described in this clause (v) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. | |||
| (vi) | If the Corporation or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for the Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Current Market Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate will be adjusted based on the following formula: |
CR1
|
= | CR0 × [(FMV + (SP1 × OS1)) / (SP1 × OS0)] | ||
where: |
||||
CR0
|
= | the Conversion Rate in effect at the close of business on the Expiration Date | ||
CR1
|
= | the new Conversion Rate in effect immediately after the Expiration Date | ||
FMV
|
= | The fair market value (as determined in good faith by the Board of Directors) on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for the Common Stock validly tendered or exchanged and not withdrawn as of the Expiration Date (the “Purchased Shares”) |
OS0
|
= | the number of shares of Common Stock outstanding on the Expiration Date, including any Purchased Shares | ||
OS1
|
= | the number of shares of Common Stock outstanding on the Expiration Date, excluding any Purchased Shares | ||
SP1
|
= | the Average VWAP of the Common Stock for the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the Expiration Date. |
| If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to such Conversion Rate will be made. Any adjustment to a Conversion Rate made pursuant to this clause (vi) shall become effective on the date immediately following the last Trading Day included in the determination of the Average VWAP of the Common Stock for purposes of SP1 above; provided that in respect of any conversion within the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references to the “10 consecutive Trading Days” with respect to this clause (vi) shall be deemed replaced with a period of consecutive Trading Days containing such lesser number of Trading Days as have elapsed between the Expiration Date and the Conversion Date, and the adjustment in respect of such conversion shall occur immediately prior to the conversion. If the Corporation or one of its subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made. | |||
| (vii) | If the Corporation has in effect a shareholder rights plan while any shares of Series C Preferred Stock remain outstanding, Holders of Series C Preferred Stock will receive, upon a conversion of Series C Preferred Stock, in addition to Common Stock, rights under the Corporation’s shareholder rights agreement unless, prior to such conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Stock. If the rights provided for in the shareholder rights plan have separated from the Common Stock in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Series C Preferred Stock would not be entitled to receive any rights in respect of the Common Stock, if any, that the Corporation is required to deliver upon conversion of Series C Preferred Stock, the Conversion Rate will be adjusted at the time of separation as if the Corporation had distributed to all holders of the Common Stock, capital stock, evidences of indebtedness or other assets or property pursuant to clause (iv) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. A distribution of rights pursuant to a shareholder rights plan will not trigger an adjustment to the Conversion Rates pursuant to clauses (iii) or (iv) above. |
(f) The Corporation may make such increases in the Conversion Rate, in addition to any other
increases required by this Section 6, if the Board of Directors deems it advisable in order to
avoid or diminish any income tax to holders of the Common Stock resulting from any dividend or
distribution of the Corporation’s shares (or issuance of rights or warrants to acquire shares) or
from any event treated as such for
income tax purposes or for any other reasons. If any adjustment to the Conversion Rate is
treated as a distribution to any U.S. Alien Holder which is subject to withholding tax, the
Corporation (or Transfer Agent or any paying agent on behalf of the Corporation) may set off any
withholding tax that is required to be collected with respect to such deemed distribution against
cash payments and other distributions otherwise deliverable to such Holder.
(g) No adjustment in any Conversion Rate will be required unless the adjustment would require
an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made
because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment
that is not made will be carried forward and taken into account in any future adjustment. All
required calculations will be made to the nearest cent or 1/10,000th of a share. Notwithstanding
the foregoing, all adjustments not previously made shall have effect with respect to the
Conversion. No adjustment to the Conversion Rates need be made if Holders may participate in the
transaction that would otherwise give rise to such adjustment, so long as the distributed assets
or securities the Holders would receive upon conversion of shares of Series C Preferred Stock—if
such assets or securities are convertible, exchangeable or exercisable—are convertible,
exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period
of at least 45 days following conversion of shares of Series C Preferred Stock.
(h) The applicable Conversion Rate shall not be adjusted:
| (A) | upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Corporation’s securities and the investment of additional optional amounts in the Common Stock under any plan; | ||
| (B) | upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan, employee agreement or arrangement or program of the Corporation; | ||
| (C) | upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the Issue Date; | ||
| (D) | as a result of payment of regular quarterly dividends on the Common Stock not in excess of $0.10 per share (the “Dividend Threshold Amount”); | ||
| (E) | for a change in the par value of the Common Stock; or | ||
| (F) | as a result of a tender offer solely to holders of fewer than 100 shares of the Common Stock. |
(i) The Corporation shall have the power to resolve any ambiguity and its action in so doing,
as evidenced by a resolution of the Board, shall be final and conclusive unless clearly
inconsistent with the intent hereof.
(j) Whenever the Conversion Rate, is to be adjusted, the Corporation shall: (i) compute such
adjusted Conversion Rate and prepare and transmit to the Transfer Agent an Officers’ Certificate
setting forth such adjusted Conversion Rate, the method of calculation thereof in reasonable
detail and the facts requiring such adjustment and upon which such adjustment is based; (ii) as
soon as practicable following the determination of a revised Conversion Rate, provide, or cause to
be provided, a written notice to the Holders of shares of Series C Preferred Stock of the
occurrence of such event and (iii) as soon as practicable following the determination of a revised
Conversion Rate, provide, or cause to be provided, to the Holders of shares of Series C Preferred
Stock, a statement setting forth in reasonable detail the method by which the adjustment to the
Conversion Rate, as
applicable, was determined and setting forth such revised Conversion Rate. Failure to
deliver such notice shall not affect the legality or validity of any such adjustment.
Section 7. Reorganization Events.
(a) In the event that any of the following events occurs prior to the Conversion Date:
| (i) | any consolidation or merger of the Corporation with or into another Person (other than a merger or consolidation in which the Corporation is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Corporation or another Person), | ||
| (ii) | any sale, transfer, lease or conveyance to another Person of all or substantially all of the Corporation’s property and assets, or | ||
| (iii) | any reclassification of the Common Stock into securities including securities other than the Common Stock (any such event specified in paragraphs (a) through (c) of this Section 7, a “Reorganization Event”), |
then each share of Series C Preferred Stock outstanding immediately prior to such Reorganization
Event shall, without the consent of the Holders thereof, remain outstanding but shall at each
Holder’s option, subject to the applicable rules of Nasdaq Global Select Market or any other
national securities exchange or automated quotation system where the Common Stock is listed and
other applicable laws and regulations, upon the effective date and time (“Reorganization
Effective Time”) of such Reorganization Event, be convertible into the kind of securities, cash
and other property receivable in such Reorganization Event (without any interest thereon and
without any right to dividends or distributions thereon which have a record date that is prior to
the Reorganization Event) per share of Common Stock (the “Exchange Property”) as if the
Holder of such share of Series C Preferred Stock had converted such share into Common Stock
immediately prior to such Reorganization Event and exercised his rights of election, if any, as to
the kind or amount of securities, cash and other property receivable upon such Reorganization Event
(provided that if the kind or amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held immediately prior to such
Reorganization Event and in respect of which such rights of election shall have been exercised
(“Electing Share”), then, for the purpose of this Section 7 the kind and amount of
securities, cash and other property receivable upon such Reorganization Event by the holder of each
Electing Share shall be deemed to be the weighted average of the kinds and amounts so receivable
per share by the holders of the Electing Shares). The amount of Exchange Property receivable upon
any Reorganization Event shall be determined based upon the Conversion Rate in effect on such
Reorganization Effective Time.
The above provisions of this Section 7 shall similarly apply to successive Reorganization
Events and the provisions of Section 8 shall apply to any shares of capital stock of the
Corporation (or any successor) received by the holders of Common Stock in any such Reorganization
Event.
The Corporation (or any successor) shall, within 20 days of the Effective Time of any
Reorganization Event, provide written notice to the Holders of the occurrence of such event and of
the kind and amount of the cash, securities or other property that constitute the Exchange
Property. Failure to deliver such notice shall not affect the operation of this Section 7.
The Corporation shall not enter into any agreement for a transaction constituting a
Reorganization Event unless such agreement provides for or does not interfere with or prevent (as
applicable) conversion of the Series C Preferred Stock into the Exchange Property in a manner that
is consistent with and gives effect to this Section 7.
Section 8. Reservation of Common Stock.
(a) Following the receipt of the Shareholder Approvals, the Corporation shall at all times
reserve and keep available out of its authorized and unissued Common Stock or shares held in the
treasury of the Corporation, solely for issuance upon the conversion of shares of Series C
Preferred Stock as herein provided, free from any preemptive or other similar rights, such number
of shares of Common Stock as shall from time to time be issuable upon the conversion of all the
shares of Series C Preferred Stock then outstanding. For purposes of this Section 8 (a), the
number of shares of Common Stock that shall be deliverable upon the conversion of all outstanding
shares of Series C Preferred Stock shall be computed as if at the time of computation all such
outstanding shares were held by a single Holder.
(b) Notwithstanding the foregoing, the Corporation shall be entitled to deliver upon
conversion of shares of Series C Preferred Stock, as herein provided, shares of Common Stock
reacquired and held in the treasury of the Corporation (in lieu of the issuance of authorized and
unissued shares of Common Stock), so long as any such treasury shares are free and clear of all
liens, charges, security interests or encumbrances (other than liens, charges, security interests
and other encumbrances created by the Holders).
(c) All shares of Common Stock delivered upon conversion of the Series C Preferred Stock
shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all
liens, claims, security interests and other encumbrances (other than liens, charges, security
interests and other encumbrances created by the Holders).
(d) Prior to the delivery of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series C Preferred Stock, the Corporation shall use its reasonable
best efforts to comply with all federal and state laws and regulations thereunder requiring the
registration of such securities with, or any approval of or consent to the delivery thereof by,
any governmental or regulatory authority.
(e) The Corporation hereby covenants and agrees that, if at any time the Common Stock shall
be listed on the Nasdaq Capital Market or any other national securities exchange or automated
quotation system, the Corporation shall, if permitted by the rules of such exchange or automated
quotation system, list and keep listed, so long as the Common Stock shall be so listed on such
exchange or automated quotation system, all Common Stock issuable upon conversion of the Series C
Preferred Stock; provided, however, that if the rules of such exchange or automated quotation
system permit the Corporation to defer the listing of such Common Stock until the first conversion
of shares of Series C Preferred Stock into Common Stock in accordance with the provisions hereof,
the Corporation covenants to list such Common Stock issuable upon conversion of shares of Series
C Preferred Stock in accordance with the requirements of such exchange or automated quotation
system at such time.
Section 9. Fractional Shares.
(a) No fractional shares of Common Stock shall be issued as a result of any conversion of
shares of Series C Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in respect of any
Conversion, the Corporation shall at its option either (i) issue to such Holder an amount of
shares rounded up to the next whole share of Common Stock or (ii) pay an amount in cash (computed
to the nearest cent) equal to the same fraction of the Current Market Price of the Common Stock as
of the end of the Trading Day preceding the Conversion Date.
(c) If more than one share of the Series C Preferred Stock is surrendered for conversion at
one time by or for the same Holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of shares of the Series
C Preferred Stock so surrendered.
Section 10. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation,
dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary,
each Holder of shares of Series C Preferred Stock shall be entitled to receive for each share of
Series C Preferred Stock, out of the assets of the Corporation or proceeds thereof (whether
capital or surplus) available for distribution to stockholders of the Corporation, subject to the
rights of any creditors of the Corporation, before any distribution of such assets or proceeds is
made to or set aside for the holders of Common Stock and any other Junior Stock of the
Corporation, payment in full in an amount equal to the sum of (i) Liquidation Amount per share of
Series C Preferred Stock and (ii) any declared and unpaid dividends on such share to the extent
provided in Section 4 (all such amounts collectively, the “Liquidation Preference”).
(b) Partial Payment. If in any distribution described in Section 10(a) of the
Corporation’s assets or the proceeds thereof are not sufficient to pay in full the amounts payable
with respect to all outstanding shares of Series C Preferred Stock and the corresponding amounts
payable with respect of any other stock of the Corporation ranking equally with Series C Preferred
Stock as to such distribution, Holders of Series C Preferred Stock and the holders of such other
stock shall share ratably in any such distribution in proportion to the full respective
distributions (including, if applicable, dividends on such amount) to which they are entitled.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to
all Holders of Series C Preferred Stock and the corresponding amounts payable with respect of any
other stock of the Corporation ranking equally with Series C Preferred Stock as to such
distribution has been paid in full, the Holders of the Series C Preferred Stock will have no right
or claim to any of the remaining assets of the Corporation (or proceeds thereof).
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this
Section 11, the merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the Holders of shares of Series C Preferred
Stock receive cash, securities or other property for their shares, or the sale, lease, or exchange
(for cash, securities or other property) or pledge of all or substantially all of the assets of
the Corporation, shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 11. No Sinking Fund. The shares of Series C Preferred Stock will not be subject to
any mandatory redemption, sinking fund or other similar provisions. Holders of shares of Series C
Preferred Stock will have no right to require redemption or repurchase of any shares of Series C
Preferred Stock.
Section 12. Status of Repurchased Shares. Shares of Series C Preferred Stock that are
converted into Common Stock or repurchased or otherwise acquired by the Corporation shall revert to
authorized but unissued shares of Preferred Stock undesignated as to series (provided that any such
cancelled shares of Series C Preferred Stock may be reissued only as shares of any series of
Preferred Stock other than Series C Preferred Stock).
Section 13. Voting Rights.
(a) General. The Holders of shares of Series C Preferred Stock shall not have any
voting rights except as set forth below or as otherwise from time to time required by law.
Holders of shares of Series C Preferred Stock will be entitled to one vote for each such share on
any matter on which Holders of shares of Series C Preferred Stock are entitled to vote, including
any action by written consent.
(b) Voting Rights as to Particular Matters. So long as any shares of Series C
Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required
by law or by the Articles, the affirmative vote or consent of the Holders of at least 66 2/3% of
the shares of Series C Preferred Stock at the time outstanding, voting as a separate class, given
in person or by proxy, by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
| (i) | Authorization of Senior Stock. Any amendment or alteration of the Articles or any articles of amendment thereto to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock of the Corporation ranking senior to the Series C Preferred Stock with respect to either or both the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up of the Corporation; | ||
| (ii) | Amendment of Series C Preferred Stock. Any amendment, alteration or repeal of any provision of the Articles or these Articles of Amendment thereto (including, unless no vote on such merger or consolidation is required by clause (iii) below, any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or voting powers of shares of Series C Preferred Stock; or | ||
| (iii) | Share Exchanges, Reclassifications, Mergers and Consolidations. Any consummation of a binding share exchange or reclassification involving the shares of Series C Preferred Stock, or of a merger or consolidation of the Corporation with another corporation or other entity, unless in each case (x) the shares of Series C Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and limitations and restrictions thereof, of shares of Series C Preferred Stock immediately prior to such consummation, taken as a whole; |
provided, however, that for all purposes of this Section 13(b), the creation and issuance, or an
increase in the authorized or issued amount, whether pursuant to preemptive or similar rights or
otherwise, of any other series of Preferred Stock, or any securities convertible into or
exchangeable or exercisable for any other series of Preferred Stock, ranking equally with and/or
junior to Series C Preferred Stock with respect to the payment of dividends (whether such dividends
are cumulative or noncumulative) and the distribution of assets upon liquidation, dissolution or
winding up of the Corporation will not be deemed to adversely affect the rights, preferences,
privileges or voting powers, and shall not require the affirmative vote or consent of, the Holders
of outstanding shares of the Series C Preferred Stock.
(c) Procedures for Voting and Consents. The rules and procedures for calling and
conducting any meeting of the Holders of Series C Preferred Stock (including, without limitation,
the fixing of a record date in connection therewith), the solicitation and use of proxies at such
a meeting, the obtaining of written consents and any other aspect or matter with regard to such a
meeting or such consents shall be governed by any rules of the Board of Directors, in its
discretion, may adopt from time to time, which rules and procedures shall conform to the
requirements of the Corporation’s Articles, the Bylaws and applicable law and the rules of any
national securities exchange or other trading facility on which Series C Preferred Stock is listed
or traded at the time.
(d) Preferred Stock Directors. Whenever, at any time or times, dividends payable on
the shares of Series C Preferred Stock, if any shares of Series C Preferred Stock remain
outstanding, have not been paid for an aggregate of three or more Dividend Periods, in each case
whether or not consecutive, the authorized number of directors of the Corporation shall
automatically be increased by two and the holders of the Series C Preferred Stock shall have the
right, together with holders of any one or more other classes or series of Voting Parity Stock
outstanding at the time, voting together as a class, to elect two directors (the “Preferred
Directors” and each a “Preferred Director”) to fill such newly created directorships
at the Corporation’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
Dividend Periods, including the latest completed Dividend Period, on all outstanding shares of
Series C Preferred Stock have been declared and paid in full.
Further, if any other class or series of Voting Parity Stock at any time has the right to
elect such a Preferred Director, holders of Series C Preferred Stock will have the right, together
with holders of all classes or series of Voting Parity Stock, to elect such Preferred Director.
The voting rights with respect to such Preferred Directors are subject to the terms and limitations
of such rights set forth in the Series A Preferred Stock Articles of Amendment.
Section 14. Record Holders. To the fullest extent permitted by applicable law, the
Corporation and the Transfer Agent may deem and treat the Record Holder of any share of Series C
Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation
nor such transfer agent shall be affected by any notice to the contrary.
Section 15. Notices. All notices or communications in respect of Series C Preferred Stock
shall be sufficiently given if given in writing and delivered in person or by first class mail,
postage prepaid, or if given in such other manner as may be permitted in these Articles of
Amendment, in the Articles or Bylaws or by applicable law. Notwithstanding the foregoing, if
shares of Series C Preferred Stock are issued in book-entry form through DTC or any similar
facility, such notices may be given to the Holders of Series C Preferred Stock in any manner
permitted by such facility.
Section 16. No Preemptive Rights; No Redemption Rights. No share of Series C Preferred Stock
shall have any preemptive rights whatsoever as to any securities of the Corporation, or any
warrants, rights or options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or granted. No holder
of shares of Series C Preferred Stock shall have at any time the right to put such shares of Series
C Preferred Stock to the Corporation or to have the Corporation redeem any shares of Series C
Preferred Stock.
Section 17. Redemption by the Corporation. The Series C Preferred Stock shall not be
redeemable by the Corporation. In all events, any repurchase or redemption of Series C Preferred
Stock shall be subject to the prior approval of the Corporation’s primary federal banking
regulator, if required by applicable law or regulation or if such approval is a requirement to the
Series C Preferred Stock being classified as Tier 1 capital (or the equivalent) for bank regulatory
purposes, together with any other required regulatory approvals.
Section 18. Replacement Stock Certificates. If any of the Series C Preferred Stock
Certificates shall be mutilated, lost, stolen or destroyed, the Corporation shall, at the expense
of the Holder, issue, in exchange and in substitution for and upon cancellation of the mutilated
Series C Preferred Stock Certificate, or in lieu of and substitution for the Series C Preferred
Stock Certificate lost, stolen or destroyed, a new Series C Preferred Stock Certificate of like
tenor and representing an equivalent amount of shares of Series C Preferred Stock, but only upon
receipt of evidence of such loss, theft or destruction of such Series C Preferred Stock Certificate
and indemnity, if requested, satisfactory to the Corporation and the Transfer Agent.
Section 19. Transfer Agent, Registrar, Conversion and Dividend Paying Agent. The duly
appointed transfer agent, registrar, conversion and dividend paying agent for shares of Series C
Preferred Stock shall be the Transfer Agent. The Corporation may, in its sole discretion, remove
the Transfer Agent in accordance with the agreement between the Corporation and the Transfer Agent;
provided that the Corporation shall appoint a successor transfer agent who shall accept such
appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the
Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders of
shares of Series C Preferred Stock.
Section 20. Form. The Series C Preferred Stock shall be issued in the form of one or more
definitive shares in fully registered form in substantially the form attached hereto as Exhibit
A (each, a “Series C Preferred Stock Certificate”), which is hereby incorporated in and
expressly made a part of these Articles of Amendment. Each Series C Preferred Stock Certificate
shall reflect the number of shares of Series C Preferred Stock represented thereby, and may have
notations, legends or endorsements required by law, stock exchange rules, agreements to which the
Corporation is subject, if any, or usage (provided that any such notation, legend or endorsement is
in a
form acceptable to the Corporation). Each Series C Preferred Stock Certificate shall be
registered in the name or names of the Person or Persons specified by the Depositary in a written
instrument to the Registrar.
A duly authorized officer of the Corporation shall sign each Series C Preferred Stock
Certificate for the Corporation, in accordance with the Corporation’s Bylaws and applicable law, by
manual or facsimile signature. If an officer whose signature is on a Series C Preferred Stock
Certificate no longer holds that office at the time the Transfer Agent countersigned the Series C
Preferred Stock Certificate, the Series C Preferred Stock Certificate shall be valid nevertheless.
A Series C Preferred Stock Certificate shall not be valid until an authorized signatory of the
Transfer Agent manually countersigns Series C Preferred Stock Certificate. Each Series C Preferred
Stock Certificate shall be dated the date of its countersignature.
Section 21. Stock Transfer and Stamp Taxes. The Corporation shall pay any and all stock
transfer and documentary stamp taxes that may be payable in respect of any issuance or delivery of
shares of Series C Preferred Stock or shares of Common Stock or other securities issued on account
of Series C Preferred Stock pursuant hereto or certificates representing such shares or securities.
The Corporation shall not, however, be required to pay any such tax that may be payable in respect
of any transfer involved in the issuance or delivery of shares of Series C Preferred Stock or
Common Stock or other securities in a name other than that in which the shares of Series C
Preferred Stock with respect to which such shares or other securities are issued or delivered were
registered, or in respect of any payment to any person other than a payment to the Holder thereof,
and shall not be required to make any such issuance, delivery or payment unless and until the
person otherwise entitled to such issuance, delivery or payment has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of the Corporation, that such tax
has been paid or is not payable.
Section 22. Other Rights. The shares of Series C Preferred Stock shall not have any rights,
preferences, privileges or voting powers or relative, participating, optional or other special
rights, or qualifications, limitations or restrictions thereof, other than as set forth herein, or
in the Articles or as provided by applicable law.
III.
These Articles of Amendment were duly adopted by the Board of Directors on April 7, 2010.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Corporation has authorized and caused these Articles of Amendment to
be signed by its Chairman and Chief Executive Officer as of April 8, 2010.
| SEACOAST BANKING CORPORATION OF FLORIDA | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | Chairman & Chief Executive Officer | |||||
Exhibit A
Number
|
Shares | |
PA [ ]
|
[Number of Shares] |
SEACOAST BANKING CORPORATION OF FLORIDA
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
| THIS CERTIFIES THAT | NAME | CUSIP 811707 702 | ||
| is the owner of | [NUMBER OF SHARES] |
FULLY PAID AND NON-ASSESSABLE SHARES OF MANDATORILY CONVERTIBLE NONCUMULATIVE NONVOTING PREFERRED STOCK, SERIES C, $0.10 PAR VALUE OF
SEACOAST BANKING CORPORATION OF FLORIDA,
transferable on the books of the Corporation by the holder hereof, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be subject to all of the provisions of the Articles of Incorporation, as amended, and By-laws of the Corporation as now or hereafter amended to all of which the holder hereof by acceptance hereby assents.
SEACOAST BANKING CORPORATION OF FLORIDA,
transferable on the books of the Corporation by the holder hereof, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be subject to all of the provisions of the Articles of Incorporation, as amended, and By-laws of the Corporation as now or hereafter amended to all of which the holder hereof by acceptance hereby assents.
This certificate is not valid unless countersigned by the Transfer Agent.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly
authorized officers.
Dated:
/s/ Xxxxxx X. Xxxxxx, III |
||
EXECUTIVE OFFICER |
||
/s/ Xxxxxx Xxxx |
||
[CORPORATE SEAL]
COUNTERSIGNED AND
REGISTERED
Continental Stock Transfer & Trust
Co.
REGISTERED
Continental Stock Transfer & Trust
Co.
TRANSFER AGENT AND
REGISTRAR
REGISTRAR
By: |
||||
SEACOAST BANKING CORPORATION OF FLORIDA
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK
AND ARE NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER OF THE CORPORATION WHO SO
REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING, OPTIONAL OR SPECIAL
RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. SUCH REQUEST SHOULD BE ADDRESSED TO
THE CORPORATION OR THE TRANSFER AGENT.
THE ISSUANCE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATING
THERETO UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS
SET FORTH IN AN INVESTMENT AGREEMENT, EFFECTIVE AS OF THE EFFECTIVENESS DATE THEREOF, COPIES OF
WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AT THE CORPORATION’S PRINCIPAL EXECUTIVE
OFFICES.
The following abbreviations, when used in the inscription on the face of this certificate,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM — as tenants in common
|
UNIF GIFT MIN ACT - | Custodian | ||||||||
| under Uniform Gifts to Minors Act | ||||||||||
| (State) | ||||||||||
TEN ENT — as tenants
by the entireties |
||||||||||
JT TEN — as joint
tenants with right of
survivorship and not
as tenants in common |
||||||||||
Additional abbreviations may also be used though not in the above list.
| PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE |
||||
| For value received, do hereby sell, assign and transfer unto | ||||
| Shares | ||
| of the Mandatorily Convertible Noncumulative Nonvoting Preferred Stock, Series B, represented by the within Certificate, and do hereby irrevocably constitute and appoint | ||
| Attorney | ||
| to transfer the Shares on the books of the within-named Corporation with full power of substitution in the premises. | ||
Dated:
|
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN “ELIGIBLE GUARANTOR INSTITUTION” |
| WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. | ||
Notice: The signature(s) to
this assignment
must correspond
with the name(s) as
written upon the
face of the
certificate, in
every particular,
without alternation
or enlargement, or
any change
whatever. |
SIGNATURE GUARANTEED BY: |
Exhibit B
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of April 8,
2010 by and among Seacoast Banking Corporation of Florida, a Florida corporation (the
“Company”), and the investors listed on the signature page(s) hereto (the
“Investors”).
RECITALS
WHEREAS, this Agreement is made pursuant to the Investment Agreement (the “Investment
Agreement”), dated as of April 8, 2010, by and among the Company and the Investors;
WHEREAS, pursuant to the Investment Agreement, subject to the terms and conditions set forth
therein, (a) the Investors have agreed to purchase from the Company, pursuant to a private
placement by the Company, (i) shares of $50 million aggregate liquidation preference of Mandatorily
Convertible Noncumulative Nonvoting Preferred Stock, Series B, of the Company, having the terms set
forth on Exhibit A-1 of the Investment Agreement (the “Series B Preferred Stock”) and (ii)
shares of $200 million aggregate liquidation preference of Mandatorily Convertible Noncumulative
Nonvoting Preferred Stock, Series C, of the Company, having the terms set forth on Exhibit A-2 of
the Investment Agreement (the “Series C Preferred Stock and, together with the Series B
Preferred Stock, the “Convertible Preferred Stock”), each of which are convertible into
Shares of the Company’s common stock, par value $0.10 per share (the “Common Stock”), as
further described in the Investment Agreement, and (b) the Company has agreed to issue and sell the
Convertible Preferred Stock to the Investors; and
WHEREAS, as a condition to the consummation of the transactions contemplated by the Investment
Agreement, the Company has agreed to enter into this Agreement in order to grant certain
registration rights to the Investors, as set forth below.
NOW, THEREFORE, in consideration of the foregoing promises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. GENERAL
1.1 Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
“Acquisition” means the Acquisition as defined in the Investment Agreement.
“Affiliate” of any Person means any other Person controlling, controlled by or under
common control with such particular person or entity. The term “control” (including the terms
“controlling,” “controlled” and “under common control with”) as used with respect to any Person
means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.
“CapGen” has the meaning set forth in Section 2.2(a).
“CapGen Registration Rights Agreement” has the meaning set forth in Section
2.2(a).
“Closing” means the Closing as defined in the Investment Agreement.
“Common Stock” has the meaning set forth in the recitals.
“Company” has the meaning set forth in the preamble.
“Convertible Preferred Stock” has the meaning set forth in the recitals.
“Effective Date” means the date that the registration statement filed pursuant to
Section 2.1(a) is first declared effective by the Commission.
“Effectiveness Deadline” means, with respect to the initial registration statement
required to be filed pursuant to Section 2.1(a), the earlier of (i) the 60th calendar day
following the Filing Deadline and (ii) the 5th Business Day after the date the Company is notified
(orally or in writing, whichever is earlier) by the SEC that such registration statement will not
be “reviewed” or will not be subject to further review; provided, that if the Effectiveness
Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the
Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open
for business.
“Event” has the meaning set forth in Section 2.1(c).
“Event Date” has the meaning set forth in Section 2.1(c).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or similar
federal statute successor thereto, and the rules and regulations of the Commission promulgated
thereunder, as they each may, from time to time, be in effect at the time.
“Filing Deadline” means, with respect to the initial registration statement required
to be filed pursuant to Section 2.1(a), the earlier of (i) the 90th calendar day following
the closing of the Acquisition and (ii) 15 calendar days after the Company files the Current Report
on Form
8-K containing the audited and pro forma financial statements required to be filed in
connection with the Acquisition, provided, however, that if the Filing Deadline falls on a
Saturday, Sunday or other day that the SEC is closed for business, the Filing Deadline shall be
extended to the next business day on which the Commission is open for business. Notwithstanding
the preceding sentence, if only Series B Preferred Stock is sold pursuant to the Investment
Agreement, then “Filing Deadline” means, with respect to the initial registration statement
required to be filed pursuant to Section 2.1(a), the 45th calendar day after the Closing.
“FINRA” means the Financial Industry Regulatory Authority.
“Form S-1” means a registration statement on Form S-1 under the Securities Act as in
effect on the date hereof or any successor or similar registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.
“Form S-3” means a registration statement on Form S-3 under the Securities Act as in
effect on the date hereof or any successor or similar registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.
“Holder” or “holder” means any Investor and any transferee thereof, which
holds of record and following notice to the Company and a proper transfer thereof, of shares of
Convertible Preferred Stock or Registrable Securities.
“Holder Affiliates” has the meaning set forth in Section 2.8(a).
“Investment Agreement” has the meaning set forth in the recitals.
“Investors” has the meaning set forth in the preamble.
“Liquidated Damages” has the meaning set forth in Section 2.1(c).
“Mandatory Registration” has the meaning set forth in Section 2.1(a).
“Misstatement” has the meaning set forth in Section 2.5.
“New Stock” means Common Stock or securities convertible into or exchangeable for
Common Stock or which have voting rights or participation features with Common Stock, offered in a
public or nonpublic offering by the Company.
“Person” means any individual, corporation, partnership, sole proprietorship, joint
venture, limited liability company, business trust, joint stock company, trust, association or
unincorporated organization or any government or any agency or political subdivision thereof.
“Qualified Equity Offering” means a public or nonpublic offering of New Stock solely
for cash and not pursuant to a Special Registration; provided, however, that none of the following
offerings shall constitute a Qualified Equity Offering: (a) any offering pursuant to any stock
purchase plan, dividend reinvestment plan, stock ownership plan, stock option or equity
compensation or incentive plan or other similar plan where stock is being issued or offered to a
trust, other entity or otherwise, to or for the benefit of any employees, potential employees,
officers or directors of the Company, or (b) any offering made as consideration pursuant to an
acquisition or business combination (whether structured as a merger or otherwise), a partnership or
joint venture or strategic alliance or investment by the Company or similar non-capital raising
transaction (but not an offering to raise capital to fund such an acquisition).
“Register,” “registered,” and “registration” shall refer to a registration
effected by preparing and filing a registration statement in compliance with the Securities Act,
and the declaration or ordering of effectiveness of such registration statement.
“Registrable Securities” means (a) the Shares; (b) any other shares of Common Stock
held by the Holders and purchased from the Company directly or through an underwriter or placement
agents; and (c) any Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right, preferred stock or other security which is issued after the
Closing) a dividend, stock split or other distribution or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization with respect to, or in
exchange for or in replacement of, the Common Stock held by the Holders, provided, however, that
Registrable Securities shall not include any shares of Common Stock which have been sold to the
public by a Holder either pursuant to a registration statement or Rule 144, or which have been sold
in a private transaction in which the transferor’s rights under this Agreement are not assigned.
“Registrable Securities then outstanding” shall be the number of shares determined by
calculating the total number of shares of the Company’s Common Stock that are Registrable
Securities and either (a) are then issued and outstanding or (b) are issuable pursuant to
exercisable or convertible securities.
“Registration Expenses” shall mean all fees and expenses incurred by the Company
relating to any registration, qualification or compliance pursuant to this Agreement (including any
Mandatory Registration or Shelf Registration), including, without limitation, all registration and
filing fees, exchange listing fees, transfer agent’s and registrar’s fees, cost of distributing
prospectuses in preliminary and final form as well as any supplements thereto, printing expenses,
fees and disbursements of counsel for the Company, blue sky fees and expenses, Financial Industry
Regulatory Authority fees, expenses of the Company’s independent accountants, and fees and
expenses of underwriters (excluding discounts and commissions) and any other Persons retained by
the Company, but shall not include Selling Expenses and the compensation of regular employees of
the Company, which shall be paid in any event by the Company. Notwithstanding the foregoing,
Registration Expenses shall include the reasonable, documented, fees and expenses of one counsel
chosen by the holders of a majority of the Registrable Securities covered by such registration for
such counsel rendering services customarily performed by counsel for selling stockholders that are
submitted to the Company in writing.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such Rule.
“SEC” or “Commission” means the Securities and Exchange Commission or any
successor agency.
“SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the SEC staff and (ii) the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended, or similar federal
statute successor thereto, and the rules and regulations of the Commission promulgated thereunder,
as they each may, from time to time, be in effect.
“Selling Expenses” shall mean all underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Securities and fees and disbursements of
counsel for any Holder (other than the fees and disbursements of counsel included in Registration
Expenses).
“Series B Preferred Stock” has the meaning set forth in the recitals.
“Series C Preferred Stock” has the meaning set forth in the recitals.
“Shares” refers to the shares of Common Stock issuable upon conversion of the
Convertible Preferred Stock.
“Shelf Registration” has the meaning set forth in Section 2.1(a).
“Shelf Termination Date” has the meaning set forth in Section 2.1(a).
“Special Registration” means the registration of (a) equity securities and/or options
or other rights in respect thereof solely registered on Form S-4 or Form S-8 (or any successor or
similar registration form under the Securities Act) or (b) shares of equity securities and/or
options or other rights in respect thereof to be offered to directors, management, employees,
potential employees, consultants, customers, lenders or vendors of the Company or its direct or
indirect subsidiaries or in connection with dividend reinvestment or stock purchase plans.
“Violation”
has the meaning set forth in Section 2.8(a).
SECTION 2. REGISTRATION
2.1 Shelf Registration.
(a) On or prior to the Filing Deadline, the Company shall use its reasonable best efforts to
file with the SEC a registration statement on the applicable SEC form with respect to the resale
from time to time, whether underwritten or otherwise, of the Registrable Securities by the Holders.
The Company shall use its reasonable best efforts to promptly respond to all SEC comments, if any,
related to such registration statement but in any event within two weeks of the receipt thereof,
and shall use its reasonable best efforts to obtain all such qualifications and compliances as may
be so requested and as would permit or facilitate the sale and distribution of all of the Holders’
Registrable Securities, including causing such registration statement to be declared effective by
the SEC as soon as practicable after filing and no later than the Effectiveness Deadline. The
Company shall use its reasonable best efforts to maintain the effectiveness of the registration
effected pursuant to this Section 2.1(a) at all times. The registration contemplated by
this Section 2.1(a) is referred to herein as the “Mandatory Registration.” The
Mandatory Registration shall be filed with the SEC in accordance with and
pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in
effect) (a “Shelf Registration”). The Company shall use its reasonable best efforts to
cause the registration statement or statements filed hereunder to remain effective until such date
(the “Shelf Termination Date”) that is the earlier of (i) the date on which all Registrable
Securities included in the registration statement shall have been publicly sold or shall have
otherwise ceased to be Registrable Securities and (ii) the date that all Registrable Securities
covered by
such Registration Statement may be sold without volume or manner of sale restrictions
under Rule 144, and without the requirement for the Company to be in compliance with the current
public information requirements under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), as
determined by counsel to the Company. In the event the Mandatory Registration must be effected on
Form S-1 or any similar long-form registration as the Company may elect or is required to use, such
registration shall nonetheless be filed as a Shelf Registration and the Company shall use its
reasonable best efforts to keep such registration current and effective, including by filing
periodic post-effective amendments to update the financial statements contained in such
registration statement in accordance with Regulation S-X promulgated under the Securities Act until
the Shelf Termination Date. The Company shall not include in the Mandatory Registration any
securities which are not Registrable Securities without the prior written consent of the holders of
at least a majority of the Registrable Securities included in such registration. The Company shall
request effectiveness of a Registration Statement as of 5:00 p.m. New York City time on a Business
Day. The Company shall promptly notify the Holders via facsimile or electronic mail of a “.pdf”
format data file of the effectiveness of a Registration Statement within one (1) Business Day of
the Effective Date. The Company shall, by 9:30 a.m. New York City time on the first Business Day
after the Effective Date, file a final Prospectus with the Commission, as required by Rule 424(b).
(b) Notwithstanding the registration obligations set forth in this Section 2.1, in the
event the SEC informs the Company that all of the Registrable Securities then outstanding cannot,
as a result of the application of Rule 415 of the Securities Act, be registered for resale as a
secondary offering on a single registration statement, the Company agrees to promptly (i) inform
each of the Holders thereof and use its commercially reasonable efforts to file amendments to the
initial registration statement as required by the SEC and/or (ii) withdraw the initial registration
statement and file a new registration statement, in either case covering the maximum number of
Registrable Securities permitted to be registered by the SEC, on Form X-0, Xxxx X-0 or such other
form available to the Company to register for resale the Registrable Securities as a secondary
offering; provided, that prior to filing such amendment or new registration statement, the Company
shall be obligated to use its commercially reasonable efforts to advocate with the Commission for
the registration of all of the Registrable Securities in accordance with the SEC Guidance,
including without limitation, Compliance and Disclosure Interpretation 612.09. Notwithstanding any
other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of
Registrable Securities or other shares of Common Stock permitted to be registered on a particular
Registration Statement as a secondary offering (and notwithstanding that the Company used diligent
efforts to advocate with the SEC for the registration of all or a greater number of Registrable
Securities), the number of Registrable Securities or other shares of Common Stock to be registered
on such registration statement will be reduced on a pro rata basis. In the event the Company amends
the initial registration statement or files a new registration statement, as the case may be, under
clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with
the SEC, as
promptly as allowed by SEC or SEC Guidance provided to the Company or to registrants of
securities in general, one or more registration statements on Form X-0, Xxxx X-0 or such other form
available to the Company to register for resale those Registrable Securities that were not
registered for resale on the initial registration statement, as amended, or the new registration
statement.
(c) If: (i) the initial registration statement required to be filed pursuant to Section
2.1(a) is not filed with the SEC on or prior to the Filing Deadline, or (ii) the initial
registration statement required to be filed pursuant to Section 2.1(a) is not declared
effective by the SEC (or otherwise does not become effective) for any reason on or prior to the
Effectiveness Deadline (any such failure being referred to as an “Event,” and, the date on
which such Event occurs, being referred to as an “Event Date” for purposes of this
Section 2.1(c)), then in addition to any other rights the Holders may have hereunder or
under applicable law, on each Event Date, the Company shall pay one time to each Holder an amount
in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to 1% of
the purchase price paid (in cash or by conversion) for any Registrable Securities held by such
Holder on the Event Date. The parties agree that notwithstanding anything to the contrary herein
or in the Investment Agreement, no Liquidated Damages shall be payable if as of the relevant Event
Date, the Registrable Securities may be sold by non-affiliates without volume or manner of sale
restrictions under Rule 144 and the Company is in compliance with the current public information
requirements under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), as determined by counsel to
the Company. The Effectiveness Deadline for a Registration Statement shall be extended without
default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the
effectiveness of the registration statement on a timely basis results from the failure of an
Investor to timely provide the Company with information requested by the Company and necessary to
complete the registration statement in accordance with the requirements of the Securities Act (in
which case the Effectiveness Deadline would be extended with respect to Registrable Securities held
by such Investor).
(d) In the event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the maximum number
of Registrable Securities as contemplated by Section 2.1(b) on another appropriate form and
(ii) undertake to register the Registrable Securities on Form S-3 (by amendment or otherwise)
promptly after such form is available, provided that the Company shall maintain the effectiveness
of the registration statement then in effect until such time as a registration statement on
Form S-3 (or amendment) covering the Registrable Securities has been declared effective by the Commission.
Form S-3 (or amendment) covering the Registrable Securities has been declared effective by the Commission.
2.2 Piggyback Registrations.
(a) The Company shall notify each Holder who holds Registrable Securities in writing at least
ten (10) Business Days prior to the filing of any registration statement under the Securities Act
for purposes of a public offering of securities of the Company (whether in connection with a public
offering of securities by the Company, a public offering of securities by shareholders of the
Company, or both, but excluding any registration relating to an offering excluded from a Qualified
Equity Offering or which is a Special Registration, or a registration on any registration form that
does not permit secondary sales and in any event including a
registration resulting from obligations arising out of any other registration rights agreement
to which the Company is a party, including the Registration Rights Agreement, dated as of October
23, 2009 (the “CapGen Registration Rights Agreement”), by and between the Company and
CapGen Capital Group III LP ( “CapGen”) and shall afford each such Holder an opportunity to
include in such registration statement all or part of the Registrable Securities held by such
Holder. Each Holder desiring to include in any such registration statement all or any part of the
Registrable Securities held by such Holder shall, within five (5) Business Days after receipt of
the above-described notice from the Company, so notify the Company in writing. Such notice shall
state such Holder’s desire to include all or a part of the Registrable Securities held by such
Holder. If a Holder decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless continue to have the
right to include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings of its securities,
all upon the terms and conditions set forth herein.
(b) If the registration statement under which the Company gives notice under this Section
2.2 is for an underwritten offering, the Company shall so advise in such notice the Holders who
hold Registrable Securities. In such event, the right of any such Holder to be included in a
registration pursuant to this Section 2.2 shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of the Registrable Securities such Holder
desires to include in such registration in the underwriting. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such underwriting by the
Company.
Notwithstanding any other provision of this Agreement, if the managing underwriter determines
in good faith that marketing factors require a limitation of the number of shares to be
underwritten in a registration statement pursuant to this Section 2.2, the number of shares
that may be included in such underwriting shall be allocated (i) first, to the Company (if the
company prompted the filing of the registration statement prompting compliance with this
Section 2.2); (ii) second, to CapGen pursuant to the CapGen Registration Rights Agreement
(iii) third, to all Holders who are entitled to participate and who have elected to participate in
the offering pursuant to the terms of this Agreement, on a pro rata basis based upon the total
number of shares held by each such participating Holder that are subject to piggyback registration
rights pursuant hereto; and (iv) fourth, to any other shareholder of the Company on a pro rata
basis.
If any Holder disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the managing underwriter, delivered at
least 10 calendar days prior to the effective date of the registration statement or in the case of
a registration statement on Form S-3 or similar short-form registration statement, by the close of
business on the first Business Day after the public notice of an offering or if the offering is
publicly announced at the beginning of a Business Day, 4:00 P.M. New York City Time on such day.
(c) The Company shall have the right to terminate or withdraw any registration initiated by it
under this Section 2.2 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in accordance with
Section 2.3.
(d) The Company shall not grant to any other Person the right to request the Company to
register any shares of Common Stock in a piggyback registration unless such rights are consistent
with the provisions hereof.
2.3 Expenses of Registration. Except as specifically provided herein, all
Registration Expenses incurred in connection with any registration, qualification or compliance
hereunder shall be borne by the Company. The obligation of the Company to bear Registration
Expenses shall apply irrespective of whether a registration, once properly demanded or requested
becomes effective or is withdrawn or suspended. All Selling Expenses incurred in connection with
any registrations hereunder, shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of shares so registered.
2.4 Obligations of the Company. In the case of a Mandatory Registration and whenever
required to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as practicable:
(a) In the case of a Mandatory Registration, prepare and file with the SEC a registration
statement, and all amendments and supplements thereto and related prospectuses and issuer free
writing prospectuses as may be necessary to comply with applicable securities laws, with respect to
such Registrable Securities and use its reasonable best efforts to cause such registration
statement to become effective, provided that before filing a registration statement or prospectus
or any amendments or supplements thereto and issuer free writing prospectuses, the Company shall
furnish to the one counsel selected by the Holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to be filed and give
such counsel a reasonable opportunity to review and comment on such documents before they are filed
and the opportunity to object to any information pertaining to the Holders that is contained
therein, and the Company shall make any changes with respect to information regarding the Holders
reasonably requested by such counsel to such documents prior to filing.
(b) Prepare and file with the SEC a registration statement, and all amendments and supplements
thereto and related prospectuses and issuer free writing prospectuses as may be necessary to comply
with applicable securities laws, with respect to such Registrable Securities and use all reasonable
best efforts to cause such registration statement to become effective, provided that, before filing
a registration statement or prospectus or any amendments or supplements thereto and issuer free
writing prospectuses, the Company shall furnish to the counsel selected by the Holders of a
majority of Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed and give such counsel a reasonable opportunity to review and comment
on such documents before they are filed and the opportunity to object to any information pertaining
to the Holders that is contained therein, and the Company shall make any changes reasonably
requested by such counsel to such documents prior to filing, notify in writing each Holder of the
effectiveness of each registration statement filed hereunder.
(c) Furnish to the selling Holders such number of copies of a prospectus, including a
preliminary prospectus, and each amendment and supplement thereto, in conformity with the
requirements of the Securities Act, and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its reasonable best efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such jurisdictions as shall
be reasonably requested by the selling Holders; provided that the Company shall not be
required in
connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Promptly notify each Holder who holds Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made and the Company shall
promptly prepare and file with the SEC (and furnish to each such Holder a reasonable number of
copies of) a supplement or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made.
(g) Use its reasonable best efforts to furnish, on the date that such Registrable Securities
are delivered to the underwriters for sale, if such securities are being sold through underwriters,
(i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of
such registration, in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and (ii) a “comfort” letter dated as of
such date, from the independent registered public accountants of the Company, in form and substance
as is customarily given by independent registered public accountants to underwriters in an
underwritten public offering addressed to the underwriters.
(h) Promptly notify each Holder who holds Registrable Securities covered by such registration
statement in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or any order suspending or preventing the use of any related prospectus or
suspending the qualification of any equity securities included in such registration statement for
sale in any jurisdiction, and use its reasonable best efforts promptly to obtain the withdrawal of
such order.
(i) The Company shall cooperate with the Holders to facilitate the timely preparation and
delivery of Registrable Securities (whether through The Depository Trust Company, book-entry or
physical certificates), which certificates shall be free, to the extent
permitted under law, of all restrictive legends, and to enable such Registrable Securities to
be in such denominations and registered in such names as any such Holders may reasonably request.
Registrable Securities in certificated form and free from all restrictive legends may be
transmitted by the transfer agent to a Holder by crediting the account of such Holder’s prime
broker with DTC as directed by such Holder.
(j) The Company shall otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission under the Securities Act and
the Exchange Act,
including Rule 172, notify the Holders promptly if the Company no longer satisfies the conditions
of Rule 172 and take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder.
(k) The Company shall use commercially reasonable efforts to list the Registrable Securities
covered by such registration statement with any securities exchange on which the Common Stock of
the Company is then listed.
2.5 Suspension of Sales. Upon receipt of written notice from the Company that a
registration statement or prospectus contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made (a “Misstatement”),
each Holder who holds Registrable Securities shall forthwith discontinue disposition of Registrable
Securities until such Holder has received copies of the supplemented or amended prospectus that
corrects such Misstatement, or until such Holder is advised in writing by the Company that the use
of the prospectus may be resumed, and, if so directed by the Company, such Holder shall deliver to
the Company (at the Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the prospectus covering such Registrable Securities current at the time of
receipt of such notice. The total number of days that any such suspension may be in effect in any
180 day period shall not exceed 45 days, except for periods where the registration statement is
suspended due to amendments required with respect to registration statements and amendments filed
in order to update a registration statement on Form S-1, in each case, solely as a result of the
filing of periodic reports and Forms 8-K under the Exchange Act.
2.6 Termination of Registration Rights. A Holder’s registration rights shall expire
if all Registrable Securities held by such Holder (and its Affiliates, partners, members and former
members) may be sold without volume or manner of sale restrictions under Rule 144, and without the
requirement for the Company to be in compliance with the current public information requirements
under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), as determined by counsel to the Company.
2.7 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction restraining or otherwise
delaying any such registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the Company to take any action
pursuant to Sections 2.1 or Section 2.2 that the selling Holders shall furnish to
the
Company such information regarding themselves, the Registrable Securities held by them and the
intended method of disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
2.8 Indemnification. In the event any Registrable Securities are included in a
registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each Holder,
the officers, directors, agents, general partners, managing members,
managers, affiliates and
employees of each Holder (collectively, “Holder Affiliates”), and each Person, if any, who
controls such Holder and Holder Affiliates within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, or the Exchange Act or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations (collectively, a
“Violation”): (i) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, except to the extent that such untrue
statement or alleged untrue statement is based solely upon information provided in writing by such
Holder expressly for use therein, (ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein not misleading,
except to the extent that such omission or alleged omission is based solely upon information
provided in writing by such Holder expressly for use therein or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder or Holder Affiliate, or controlling person, as
accrued, any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such settlement is effected
without the prior written consent of the Company.
(b) To the extent permitted by law and provided that such Holder is not entitled to
indemnification pursuant to Section 2.8(a) above with respect to such matter, each selling
Holder (severally and not jointly) will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, and each Person, if any,
who controls the Company within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities to which any of the foregoing persons may become subject
under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any
(i) untrue statement or alleged untrue statement of a material fact regarding such Holder and
provided in writing by such Holder expressly for use in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments, supplements or free
writing prospectuses thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein not misleading, in
each case to the extent (and only to the extent) that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, amendment, supplement or free writing prospectuses
thereto, in reliance upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration statement; and each such Holder will pay the
Company or controlling Person, as accrued, any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage, liability, or action as
a result of such Holder’s untrue statement or omission; provided, however, that the indemnity
agreement contained in this Section 2.8(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected without the
consent of the Holders; provided, that, (x) the indemnification obligations in this
Section
2.8(b) shall be individual and several not joint for each Holder and (y) in no event shall the
aggregate of all indemnification payments by any Holder under this Section 2.8(b) exceed
the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of
the commencement of any claim or action (including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party under this
Section 2.8, deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to
assume the defense thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate counsel, with the
reasonable fees and expenses of such counsel to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the indemnified party under this Section
2.8, except to the extent such failure to give notice has a material adverse effect on the
ability of the indemnifying party to defend such action.
(d) If the indemnification provided for in this Section 2.8 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements or omissions that
resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access
to information, and opportunity to correct or prevent such statement or omission. Notwithstanding
the foregoing, the amount any Holder will be obligated to contribute pursuant to this Section
2.8(d) will be limited to an amount equal to the per share offering price (less any
underwriting discount and commissions) multiplied by the number of shares sold by such Holder
pursuant to the registration statement which gives rise to such obligation to contribute (less
the aggregate amount of any damages which such Holder has otherwise been required to pay in respect
of such loss, liability, claim, damage, or expense or any substantially similar loss, liability,
claim, damage, or expense arising from the sale of such Registrable Securities). No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution hereunder from any person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control; provided that the indemnification provisions of the Holders
in any underwriting agreement may not conflict with the provisions of this Section 2.8
without the consent of the Holders.
(f) The obligations of the Company and the Holders under this Section 2.8 shall
survive the completion of any offering of shares of Common Stock in a registration statement under
this Section 2.8, and otherwise. The indemnity and contribution agreements contained in
this Section 2.8 are in addition to any liability that an indemnifying party may have to an
indemnified party.
2.9 Rule 144 Reporting. With a view to making available to the Holders the benefits
of certain rules and regulations of the SEC which may permit the sale of the Registrable Securities
to the public without registration, the Company agrees to use its reasonable best efforts to:
(a) make and keep public information available, as those terms are understood and defined in
Rule 144 or any similar or analogous rule promulgated under the Securities Act, at all times after
the effective date of this Agreement;
(b) file with the SEC, in a timely manner, all reports and other documents required of the
Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities, furnish to such Holder promptly upon
request: a written statement by the Company as to its compliance with the reporting requirements of
Rule 144, and of the Exchange Act; a copy of the most recent annual or quarterly report of the
Company; and such other reports and documents as a Holder may reasonably request in availing itself
of any rule or regulation of the SEC allowing it to sell any such securities without registration.
SECTION 3. MISCELLANEOUS
3.1 S-3 Eligibility; Registration, Priority and Other Rights of the U.S. Department of the
Treasury. The Investors acknowledge that, as of the date of this Agreement, the Company is not
eligible to utilize Form S-3 and that there can be no assurance as to when, or even if, the Company
will become eligible to utilize Form S-3. Further, the Investors acknowledge that the U.S.
Department of the Treasury has certain registration rights as a result of the Company’s
participation in the TARP Capital Purchase Program. Accordingly, the Investors acknowledge
that the U.S. Department of the Treasury may have registration, priority and other rights that
could effect the Investors’ rights hereunder.
3.2 Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including any transferees of any shares of Registrable
Securities). In addition, whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the Holders as such shall be for the
benefit of, and enforceable by, any subsequent Holder. Nothing in this Agreement, express or
implied, is intended to, as shall confer upon any Person other than the parties hereto or their
respective successors and assigns (including any transferees of any shares of Registrable
Securities) or any subsequent Holder any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
3.3 Governing Law. This Agreement shall be governed by and construed under the laws
of the State of New York without regard to its conflicts of laws rules.
3.4 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
3.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
3.6 Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to
the party to be notified or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the address indicated
for such party on the signature page hereof, or at such other address as such party may designate,
or by delivery with a reliable overnight delivery service by three (3) days’ advance written notice
to the other parties.
3.7 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company,
and the Holders as long as the Holders hold Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of any Registrable
Securities then outstanding and the Company.
3.8 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
3.9 Aggregation of Stock. All shares of Registrable Securities held or acquired by
any Holders which are Affiliates shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
3.10 Entire Agreement. This Agreement and any other agreement entered into between
any Investor and the Company constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof.
3.11 No Piggyback on Registrations. Neither the Company nor any of its security
holders (other than holders of Registrable Securities, CapGen and the U.S. Department of Treasury)
may include securities of the Company in a Mandatory Registration hereunder.
IN WITNESS WHEREOF, the parties hereto have caused and this Agreement to be executed by their
respect undersigned officers thereunder duly authorizing as of the date set forth in the first
paragraph hereof.
| SEACOAST BANKING CORPORATION OF FLORIDA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: 000 Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx 00000 [INVESTOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
Exhibit C
Form of Escrow Agreement
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this “Agreement”), dated as of April 8, 2010, is entered into
by and among SEACOAST BANKING CORPORATION OF FLORIDA, a Florida corporation (the “Company”)
and SUNTRUST BANK, a Georgia banking corporation (the “Escrow Agent”). Capitalized terms
used but not defined herein shall have the respective meanings provided in the Investment Agreement
between the Company and each of the Purchasers named therein dated as of April 8, 2010 (the
“Investment Agreement”).
WHEREAS, the Company and the Purchasers have executed and delivered the Investment Agreement
pursuant to which the Company has agreed to sell to the Purchasers and each Purchaser separately
has agreed to purchase from the Company, shares of the Company’s Series B Mandatorily Convertible
Noncumulative Nonvoting Preferred Stock (the “Series B Convertible Preferred Stock”) or
Series C Mandatorily Convertible Noncumulative Nonvoting Preferred Stock (the “Series C
Convertible Preferred Stock” and, together with the Series B Convertible Preferred Stock, the
“Convertible Preferred Stock”), all upon the terms and subject to the conditions of the
Investment Agreement;
WHEREAS, the Purchase Price paid by each Purchaser for shares of Series B Convertible
Preferred Stock (the “Series B Shares”) or shares of Series C Convertible Preferred Stock
(the “Series C Shares” and, together with the Series B Shares, the “Shares”) is
required to be held in escrow to qualify the Company’s wholly-owned bank subsidiary, Seacoast
National Bank (the “Bidder” or the “Bank”), to make one or more Bids to the Federal
Deposit Insurance Corporation (the “FDIC”) to acquire the assets and liabilities of the
Target Institution (the “Acquisition”);
WHEREAS, the Company has made an offering of $200 million of Series C Shares contingent upon
the Bidder winning the Bid for the Acquisition (the “Contingent Offering”);
WHEREAS, in the event that the Company delivers a Notice of Non-Qualification, a Notice of
Higher Bid, a Failure to Bid Notice, a Delay Notice or an Escrow Termination Notice (each as
defined herein), then the Company and the Purchasers intend to complete the sale to the Purchasers
of $50 million of Series B Shares (the “Non-Contingent Offering”) pursuant to the amounts
set forth on each Purchaser’s signature page to the Investment Agreement or otherwise indicated to
the Company with respect to Non-Contingent Shares (the “Non-Contingent Purchase Amount”);
WHEREAS, pursuant to the Investment Agreement and as a part of the transactions contemplated
thereby, the parties have agreed to enter into this Agreement in order for the Escrow Agent to
receive and hold the Purchasers’ subscription funds for the Convertible Preferred Stock and to
deliver these funds to the Company in the case of a winning Bid by the Bidder and the delivery of
certificates for the number of Shares of Convertible Preferred Stock by the Company or its transfer
agent equal to the total funds held hereunder in respect of such Purchaser, or to return such funds
to the respective Purchasers less the Non-Contingent Purchase Amount in the event the Bidder is
determined finally by the FDIC to be not qualified to submit
Bids to the FDIC for the Acquisition, or if none of the Bids submitted by the Bidder are
accepted by the FDIC as the winning bid for the Target Institution;
WHEREAS, each Purchaser has agreed to this Agreement and to be bound hereby by executing the
Investment Agreement;
WHEREAS, the Purchaser and the Company desire to more specifically set forth their rights and
obligations with respect to the amounts deposited directly by each Purchaser into escrow pursuant
to this Agreement, and earnings in respect thereof; and
WHEREAS, the Escrow Agent has reviewed but is not a party to the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties
and agreements contained herein, and for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Appointment and Agreement of Escrow Agent. The Company and the Purchasers hereby
appoint the Escrow Agent to serve as, and the Escrow Agent hereby agrees to act as, escrow agent
upon the terms and conditions of this Agreement.
2. The Escrow Deposit. Pursuant to Section 1.2 of the Investment Agreement,
simultaneously with each Purchaser’s execution of the Investment Agreement, each Purchaser (other
than a Section 1.2(c) Purchaser, a Section 1.2(d) Purchaser (each as defined in the Investment
Agreement) and any Purchaser that has agreed with the Company to deposit less than the full amount
of its Purchase Price at such time (collectively, the “Alternative Arrangement Purchasers”) is
delivering cash equal to the full amount equal to the Purchase Price for the number of Shares to be
purchased by such Purchaser in the total Non-Contingent Offering and Contingent Offering of $250
million of Shares (less amounts not required to be deposited by the Alternative Arrangement
Purchasers), by wire transfer of immediately available funds, directly to the Escrow Agent pursuant
to the wire instructions listed on Schedule A hereto (the “Escrow Deposit”). The
Escrow Agent shall deposit the Escrow Deposit into an account (the “Escrow Account”) and
hold the Escrow Deposit and all net interest and other amounts earned thereon, if any,
(collectively, the “Escrow Fund”) in the Escrow Account to be disbursed as provided herein.
3. Receipt. The Escrow Agent hereby acknowledges receipt of the Escrow Deposit and
agrees to hold and disburse the Escrow Fund in accordance with the terms and conditions of this
Agreement and for the purpose stated herein.
4. Purpose of the Escrow Fund. The Escrow Fund will be held by the Escrow Agent to
induce the Company and the Purchasers to enter into the Investment Agreement and to secure each
Purchaser’s performance under the Investment Agreement, and to demonstrate to the FDIC and the
Bidder’s and the Company’s primary regulators that the Bidder and the Company have sufficient
capital to make a Bid and close the Acquisition if the Bidder’s Bid is chosen as the winning bid.
5. Notices and Payments from the Escrow Fund. The Escrow Agent shall hold the Escrow
Fund pursuant to this Agreement and shall make no disbursements therefrom, except as follows:
(a) The Company shall notify the Escrow Agent promptly upon the occurrence of any of the
following: (i) receipt of notice in writing from the FDIC that the Bidder will not be permitted as
a final matter to enter a Bid (“Notice of Non-Qualification”), (ii) a notice in that the Bidder is
not named by the FDIC as the winning bidder for the Target Institution’s Assets and Liabilities (a
“Notice of Higher Bid”), (iii) the Company’s or the Bank’s determination not to submit a Bid or
failure to submit a Bid (a “Failure to Bid Notice”), (iv) notice in writing from the FDIC that the
deadline for submitting Bids or the closing of the Acquisition has been delayed past April 30, 2010
(a “Delay Notice”), (v) notice in writing that the Bidder has been selected as the winning bidder
(the “Winning Bid Notice”), which shall include a notice of the proposed closing of the Acquisition
by the Bidder (the actual date of such closing is called the “Closing Date”) or (vi) the failure of
the Acquisition to close by April 30, 2010 (a “Escrow Termination Notice”).
(b) Upon receipt by the Escrow Agent of a notice of any events specified in Section 5(a) other
than clause (v) thereof, the Escrow Agent shall return all Escrow Funds less the Non-Contingent
Purchase Amount to the respective Purchasers to the accounts designated by the Purchasers in
writing to the Escrow Agent within two days of receipt of such notice.
(c) In the event the Escrow Agent receives a Winning Bid Notice from the Company, the Escrow
Agent shall deliver to the Company all Escrow Funds held by it hereunder on the Closing Date.
(d) Upon notice from the Company to the Escrow Agent of the Shares to be sold in consideration
of the Non-Contingent Purchase Amount (the “Non-Contingent Shares”) and release by the Company’s
transfer agent of certificates representing such Non-Contingent Shares to each respective
Purchaser, the Escrow Agent shall deliver the Non-Contingent Purchase Amount to the Company and, if
the Escrow Agent has received a notice of any events specified in Section 5(a) other than clause
(v) thereof, return all remaining Escrow Funds, if any, to the Purchasers determined by the
Company.
(e) If the Company does not timely provide the Escrow Agent the respective notices specified
in Subsections (a) through (d) of this Section 5 and if Escrow Agent receives a written objection
from a Purchaser within three (3) business days after the due date of the notice from the Company
as provided in Section 11, the Escrow Agent shall deliver to the Purchaser the portion of the
Escrow Fund, claimed by the Purchaser. If the Escrow Agent receives a written objection from the
Company within three (3) business days after the date of delivery of such notice to the Purchaser
as provided in this Subsection 5(e) and in Section 11, the Escrow Agent shall continue to hold the
Escrow Fund until the Escrow Agent has received written instructions signed by the Company and the
Purchaser or a final non-appealable court order of a court of competent jurisdiction regarding
disposition of the Escrow Fund, in which case the Escrow Agent shall deliver the Escrow Fund in
accordance with the instructions or court order.
(f) If, at any time, the Escrow Agent receives a final non-appealable court order of a court
of competent jurisdiction or joint written instructions signed by the Company and by each Purchaser
regarding disposition of the Escrow Fund other than as provided herein, the Escrow Agent shall
comply with such court order or instructions. Such joint written instructions may only be revoked
pursuant to further joint written instructions signed by the Company and by each Purchaser or a
final non-appealable court order of a court of competent jurisdiction.
(g) All payments made to the Purchaser or the Company hereunder shall be paid by wire transfer
of immediately available funds to the account(s) designated by each Purchaser and the Company,
respectively, on Schedule B hereto.
6. Maintenance of the Escrow Fund; Termination of the Escrow Account.
(a) The Escrow Agent shall, pending the disbursement of the Escrow Fund pursuant to this
Agreement, invest the Escrow Funds in money market funds investing solely in direct obligations of,
or obligations fully guaranteed by, the United States of America or any agency thereof or (b)
certificates of deposit issued by a commercial bank having a combined capital surplus and undivided
profits of not less than $100,000,000. In the absence of joint instructions, the Escrow Agent
shall invest the Escrow Fund in the SunTrust Institutional Money Market Deposit Option.
(b) The parties recognize and agree that the Escrow Agent will not provide supervision,
recommendations or advice relating to either the investment of moneys held in the Escrow Account or
the purchase, sale, retention or other disposition of any permitted investment. Interest and other
earnings on permitted investments shall be added to the Escrow Account. Any loss or expense
incurred as a result of an investment will be borne by the Escrow Account. The Escrow Agent is
hereby authorized to execute purchases and sales of permitted investments through the facilities of
its own trading or capital markets operations or those of any affiliated entity.
(c) Although each of the parties recognizes that it may obtain a broker confirmation or
written statement containing comparable information at no additional cost, the parties hereby agree
that confirmations of permitted investments are not required to be issued by the Escrow Agent for
each month in which a monthly statement is rendered. No statement need be rendered for the Escrow
Account if no activity occurred for such month.
(d) The Escrow Agent shall hold the Escrow Fund for the benefit of the Purchasers and the
Company in accordance with this Agreement.
7. Escrow Agent.
(a) The Company and the Purchasers hereby appoint the Escrow Agent to serve hereunder, and the
Escrow Agent hereby accepts such appointment and agrees to perform all duties which are expressly
set forth in this Agreement.
(b) The Escrow Agent shall release the Escrow Fund only in accordance with the terms of this
Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent shall be entitled to rely
upon any document, instrument or signature believed by it in good faith to be genuine and signed by
any party hereto or an authorized officer or agent thereof, and shall not be required to
investigate the truth or accuracy of any statement contained in any such document or instrument.
The Escrow Agent may assume that any person purporting to give any notice in accordance with the
provisions of this Agreement has been duly authorized to do so.
(d) The Escrow Agent shall not be liable for any error of judgment, or any action taken,
suffered or omitted to be taken, hereunder, except in the case of its negligence, gross negligence,
bad faith or willful misconduct. The Escrow Agent may consult with counsel of its own choice and
shall have full and complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection or protection of the Escrow Fund,
nor as to the preservation of any rights pertaining thereto, beyond the safe custody of any such
funds actually in its possession.
(f) As compensation for its services to be rendered under this Agreement, for each year or any
portion thereof, the Escrow Agent shall receive a fee in the amount specified in Schedule A to this
Agreement, and shall be reimbursed upon request for all expenses, disbursements and advances,
including reasonable fees of outside counsel, if any, incurred or made by it in connection with the
preparation of this Agreement and the carrying out of its duties under this Agreement. All fees
and expenses incurred by the Escrow Agent in the performance of its obligations under this
Agreement shall be paid by the Company.
(g) The Escrow Agent shall be reimbursed, indemnified and held harmless by the Company against
any loss, liability or expense, including, without limitation, reasonable attorneys’ fees, incurred
by the Escrow Agent without negligence, gross negligence, bad faith or willful misconduct on the
part of the Escrow Agent arising out of, or in connection with the acceptance of, or the
performance of, its duties and obligations under this Agreement.
(h) The Escrow Agent may at any time resign by giving thirty (30) business days’ prior written
notice of resignation to the Company and the Purchasers. The Company may at any time remove the
Escrow Agent by giving ten (10) business days’ written notice signed by it to the Escrow Agent,
provided that no changes are made to the terms and conditions of this Agreement. If the Escrow
Agent shall resign or be removed, a successor Escrow Agent, which shall be a bank or trust company
having capital and surplus in excess of One Hundred Million Dollars ($100,000,000) shall be
appointed by the Company by written instrument executed by the Company and delivered to the Escrow
Agent and to such successor Escrow Agent and, thereupon, the resignation or removal of the
predecessor Escrow Agent shall become effective and such successor Escrow Agent, without any
further act, deed or conveyance, shall become vested with all right, title and interest to all cash
and property held hereunder of such predecessor Escrow Agent, and such predecessor Escrow Agent
shall, on the written request of the Company or the successor Escrow Agent, execute and deliver to
such successor Escrow Agent all the right, title and interest hereunder in and to the Escrow Fund
of such predecessor Escrow Agent and all other rights hereunder of such predecessor Escrow Agent.
If
no successor Escrow Agent shall have been appointed within twenty (20) business days of a
notice of resignation by the Escrow Agent, the Escrow Agent may apply to a court of competent
jurisdiction to appoint a substitute Escrow Agent, and the costs of obtaining such appointment
shall be reimbursable by the Company.
8. Termination. This Agreement shall terminate upon the earlier of (a) the date on
which there are no funds remaining in the Escrow Account as a consequence of disbursements made by
the Escrow Agent to the Purchasers or the Company in accordance with this Agreement, (b) the
execution and delivery of a mutual written consent signed by all parties, (c) with respect to any
Purchaser, the Escrow Agent’s receipt of a notice signed by the Company and such Purchaser
notifying the Escrow Agent that such Purchaser’s Investment Agreement has been terminated, in which
event the Escrow Agent shall pursuant to written instructions distribute such Purchaser’s Escrow
Deposit to such Purchaser, and (d) April 30, 2010.
9. Amendment and Modification. This Agreement may be amended, modified or
supplemented only by written agreement of the Company, each Purchaser and the Escrow Agent.
10. Waiver of Compliance; Consents. Except as otherwise provided in this Agreement,
any failure of any of the parties to comply with any obligation, representation, warranty,
covenant, agreement or condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation, warranty, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent shall be given in writing in a manner consistent with the
requirements for a waiver of compliance as set forth in this Section 10.
11. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given when delivered personally or by nationally recognized courier service
(receipt requested) or mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for a party as shall
be specified by like notice; provided that notices of a change of address shall be effective only
upon receipt thereof):
(a) if to the Purchaser:
As specified on each Purchaser’s signature page to the Investment Agreement
(b) if to the Company:
Xxxxxx X. Xxxxxx, III
Chief Executive Officer
Seacoast Banking Corporation of Florida
000 Xxxxxxxx Xxxxxx
Chief Executive Officer
Seacoast Banking Corporation of Florida
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxx X. XxxXxxxxx III
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(c) if to the Escrow Agent:
SunTrust Bank
Escrow Services
000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Escrow Services
000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx
12. Assignment. This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party hereto without the prior written consent of the other parties, nor is this
Agreement intended to confer upon any other person except the parties hereto any rights or remedies
hereunder, except that the Purchasers are third-party beneficiaries of this Agreement.
13. Governing Law. This Agreement shall be governed by the laws of the State of New
York (but not the laws pertaining to choice of law) as to all matters, including, but not limited
to, matters of validity, construction, effect, performance and remedies.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signatures shall be treated as original signatures for all purposes
hereunder.
15. Interpretation. The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the parties and shall not in
any way affect the meaning or interpretation of this Agreement.
16. Entire Agreement. This Agreement, including the schedules hereto, and the
documents delivered pursuant to this Agreement, together with the Investment Agreement, embody the
entire agreement and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement.
17. Severability. If any provision of this Agreement or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provision to other persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent permitted by law.
18. Reliance by the Purchasers. The parties agree and acknowledge that the Purchasers
may rely on the representations, warranties and agreements of the Company and the Escrow Agent
contained in this Agreement as if such representations, warranties and agreements, as applicable,
were made directly to the Purchasers.
19. Effect of Written Evidences Accepted by the Company. The Company agrees to give
effect to and to instruct the Escrow Agent in order to give effect to written evidences that are
accepted by the Company with respect to relative participation in the Non-Contingent Offering.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
| THE COMPANY: SEACOAST BANKING CORPORATION OF FLORIDA |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ESCROW AGENT: SUNTRUST BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Schedule A
Escrow Agent Wire Instructions
SunTrust Bank
ABA: 000000000
Account: 9443001321
Account Name: Escrow Services
Attention: Xxxx Xxxx 000-000-0000
Reference: [l]
ABA: 000000000
Account: 9443001321
Account Name: Escrow Services
Attention: Xxxx Xxxx 000-000-0000
Reference: [l]
Escrow Agent Fees
Fees payable to SunTrust Bank for services rendered with respect to this Agreement shall be as
follows:
Annual Administration Fee $[l]
The annual administration fee is quoted with the understanding that the Escrow Account will be
invested in the SunTrust Institutional Money Market Deposit Option.
The annual administration fee is payable in advance at the time of closing and will be billed to
the Company at such time and on each anniversary date. The annual administration fee shall be
deemed earned in full upon receipt by the Escrow Agent, and no portion shall be refundable for any
reason, including without limitation, termination of this Agreement.
The Company agrees that, in the event any controversy arises under or in connection with this
Agreement or the Escrow Fund or the Escrow Agent is made a party to or intervenes in any litigation
pertaining to this Agreement or the Escrow Account, the Company will pay to the Escrow Agent
reasonable compensation for its extraordinary services and to reimburse the Escrow Agent for all
costs and expenses directly or indirectly incurred by reason of such controversy or litigation.
Schedule B
Wire Instructions for the Company’s Account
Account Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Account No:
ABA Routing/Transit No:
Bank Name:
Wire Instructions for Each Purchaser’s Account
are attached hereto
EXHIBIT D
Procedures to be followed for an Early Non-Contingent Shares Closing
In the event that the Company determines to issue the Non-Contingent Shares prior to issuing
the Contingent Shares (if any) (an “Early Non-Contingent Share Closing”), this Exhibit D
shall supersede the procedures and other provisions of the Agreement to the extent set forth below.
| 1. | In order to consummate the Early Non-Contingent Share Closing, the Company shall provide notice of the date of the Early Non-Contingent Share Closing (the “Non-Contingent Share Closing Date”) to the Escrow Agent and to each of the Purchasers that have provided a Non-Contingent Allocation (the “Non-Contingent Purchasers”). | |
| 2. | On the Non-Contingent Share Closing Date, the Escrow Agent will release funds with respect to the Purchase Price attributable to the Non-Contingent Allocation to the Company and the Transfer Agent shall issue the applicable shares of Convertible Preferred Stock related to such Non-Contingent Allocation to each Non-Contingent Purchaser. | |
| 3. | Section 1.2(a) and Section 1.2(b) shall continue to apply for any closing with respect to the Contingent Shares (a “Contingent Share Closing”). | |
| 4. | With respect to any Section 1.2(c) Purchaser that is also a Non-Contingent Purchaser, effect will be given to the procedures set forth in Section 1.2(c) with respect to each such Section 1.2(c) Purchaser’s purchase of Non-Contingent Shares. Section 1.2(c) shall continue to apply for any Contingent Share Closing. | |
| 5. | With respect to any Section 1.2(d) Purchaser, if the Company effects an Early Non-Contingent Share Closing, such Section 1.2(d) Purchaser will deliver the Purchase Price attributable to such Purchase’s Non-Contingent Allocation not later than ten (10) days after the receipt of the regulatory approvals described in Section 1.2(d) (which may be after the Non-Contingent Share Closing Date) upon which the Transfer Agent shall issue the applicable shares of Convertible Preferred Stock related to such Non-Contingent Allocation of such Section 1.2(d) Purchaser. Section 1.2(d) shall continue to apply for any Contingent Share Closing. | |
| 6. | The term “Closing Date” shall be deemed to refer to the date on which any Early Non-Contingent Share Closing or Contingent Share Closing occurs; except that: |
| 6.1 | in the second Recital it shall mean “the dates of the Early Non-Contingent Share Closing and Contingent Share Closing, as applicable”; | ||
| 6.2 | in Section 3.1(b) it shall refer to the date of the Early Non-Contingent Share Closing; | ||
| 6.3 | in Section 5.5 and Section 6.7, it shall refer to the date of the Contingent Share Closing; and |
| 6.4 | in Section 4.5(e) and Section 6.1 it shall refer to the later to occur of the date of the Early Non-Contingent Share Closing and the date of the Contingent Share Closing, if any. |
