Exhibit 99.4
[FORM OF]
STANDBY PURCHASE AGREEMENT
This is a STANDBY PURCHASE AGREEMENT (the "Agreement"), dated as of the
date on the signature page between White River Capital, Inc., an Indiana
corporation ("White River"), and the purchaser named on the signature page (the
"Purchaser").
White River is offering 3,500,000 shares (the "Shares") of its common
stock, without par value, of White River (the "White River Common Stock")
pursuant to an offering (the "Subscription Offering") to Union Acceptance
Corporation's existing shareholders (who will become shareholders of White River
upon effectiveness of the share exchange described in the Registration Statement
(defined below)) and to certain potential standby purchasers (the "Standby
Offering"). The Subscription Offering and the Standby Offering will constitute
one offering (the "Offering"). The Shares being offered in the Subscription
Offering are being offered to holders of record ("Record Date Holders") of the
common stock of Union Acceptance Corporation ("UAC") as of the close of business
on ___________, 2005 (the "Record Date") in proportion to their respective
ownership of common stock of UAC outstanding on the Record Date. On or prior to
the date of this Agreement, a registration statement with respect to the shares
of White River Common Stock to be issued in the Offering has been declared
effective by the Securities and Exchange Commission (the "Commission"). The
Purchaser desires to agree to serve as a standby purchaser for a specified
number of the Shares in the Offering, to the extent available after
subscriptions made in the Subscription Offering, and agrees to purchase a
minimum number of the Shares, as set forth in this Agreement. To that end, the
parties have entered into this Agreement.
1. SUBSCRIPTION OFFERING; REGISTRATION OF THE WHITE RIVER COMMON STOCK
A registration statement on Form S-1 and Form S-4 and any supplements or
amendments thereto (the "Registration Statement") with respect to the Offering
have been filed with, and declared effective by, the Commission. Copies of (i)
the Preliminary Proxy Statement/Prospectus and the Preliminary Prospectus
Supplement for Standby Purchasers, and (ii) the Proxy Statement/Prospectus and
the Prospectus Supplement for Standby Purchasers included in the Registration
Statement at the time the Registration Statement became effective, have been
furnished to the Purchaser.
2. PURCHASE AND DELIVERY OF SHARES
A. The Purchaser and White River hereby acknowledge and agree that White
River has entered into, or contemplates entering into, one or more
additional standby purchase agreements ("Standby Purchase Agreements")
with certain other parties (collectively with the Purchaser, the
"Standby Purchasers") on terms
substantially similar to this Agreement, except that they may provide
for the purchase of a different Maximum Standby Purchase Commitment
and a different Minimum Standby Purchase Commitment (both as defined
below).
B. Subject to the terms, conditions and limitations of this Agreement and
to the availability of Shares after subscriptions made in the
Subscription Offering, the Purchaser agrees to purchase from White
River, at the subscription price per Share of $10.00 (the
"Subscription Price"), up to the number of Shares stated on the
signature page of this Agreement, to the extent necessary to provide
for full subscription for all Shares offered by White River in the
Offering (the "Maximum Standby Purchase Commitment").
C. The minimum shares to be issued by White River to Purchaser shall be
determined as follows (in either case, such minimum is referred to
herein as the "Minimum Standby Purchase Commitment"). In no event will
the Minimum Standby Purchase Commitment exceed the Maximum Standby
Purchase Commitment.
(i) If the Purchaser is not a Record Date Holder, subject to the terms
and conditions at the Closing (as defined below), White River agrees
to issue and sell to the Purchaser, and the Purchaser agrees to
purchase from White River, at the Subscription Price, a number of
Shares equal to the Maximum Standby Purchase Commitment times ___%.
(ii) If the Purchaser is a Record Date Holder, subject to the terms
and conditions at the Closing (as defined below), White River agrees
to issue and sell to the Purchaser, and the Purchaser agrees to
purchase from White River, at the Subscription Price, a number of
Shares equal to the sum of the Purchaser's Basic Subscription Amount
(set forth on the signature page of this Agreement) plus ___% of the
amount by which the Purchaser's Maximum Standby Purchase Commitment
exceeds Purchaser's Basic Subscription Amount.
D. If the number of Shares remaining and not subscribed for after
allocations of Shares necessary to satisfy subscriptions made in the
Subscription Offering and the Minimum Standby Purchase Commitments of
all Standby Purchasers is less than the aggregate Maximum Standby
Purchase Commitments of Standby Purchasers, such remaining Shares will
be allocated pro rata among Standby Purchasers according to their
respective Maximum Standby Purchase Commitments. Subject to the terms
and conditions of this Agreement, the Purchaser agrees to purchase
such number of Shares as are allocated to the Purchaser pursuant to
this Agreement.
E. The rights and obligations of the Purchaser and White River under the
Agreement are subject to any conditions or minimums described in the
Registration Statement.
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3. THE CLOSING
As soon as practicable following White River's determination of the number
of Shares subscribed for pursuant to the Subscription Offering, White River
shall notify the Purchaser of the number of Shares to be purchased by the
Purchaser pursuant to Section 2. The Shares shall be delivered, and payment for
the Shares tendered, in the manner contemplated by Section 4, simultaneously
with the closing of the sale of Shares pursuant to the Subscription Offering.
The place, date and time for delivery of payment and Shares shall be as provided
in the Registration Statement (the "Closing Time", the date of the Closing Time
being referred to as the "Closing Date" and the consummation of the transactions
being referred to as the "Closing").
4. DELIVERY OF SHARES
At the Closing, the Shares to be purchased by the Purchaser, registered in
the name of the Purchaser or its nominee, as the Purchaser may specify to White
River in writing at least four (4) business days prior to the Closing Date,
shall be delivered to the Purchaser, for the Purchaser's account within three
(3) business days of Closing. At the Closing, the Purchaser shall deliver to
White River the Subscription Price for each Share purchased pursuant hereto by
wire transfer of immediately available funds to the account the subscription
agent maintains for this purpose at Xxxxxx Trust and Savings Bank, Chicago, IL,
ABA No. 000000000, for the account of Computershare Trust Company of New York,
as subscription agent for White River Capital, Inc., for further credit to
Account No. 000-000-0 (telephone number: (000) 000-0000).
5. AGREEMENTS AND CONSENTS OF PURCHASER
The Purchaser agrees with White River that:
A. Notwithstanding anything to the contrary contained or implied herein,
without the prior written consent of White River, White River shall
not be obligated to issue to the Purchaser any Shares in an amount
which, when aggregated with other shares of White River Common Stock
beneficially owned by the Purchaser, would exceed the greater of 4.9%
of the total issued and outstanding shares of White River Common Stock
upon completion of the Offering, or Purchaser's ownership percentage
of UAC common stock on the Record Date.
X. Xxxxx River may, in its sole discretion, decline to issue any of the
Shares to the Purchaser if, in the reasonable opinion of White River,
the Purchaser is required to obtain prior clearance or approval of
such transaction from any government bank regulatory authority and
satisfactory evidence of such approval or clearance has not been
presented to White River by the Closing Date.
X. Xxxxx River may rely upon and disclose the terms of this Agreement.
Purchaser consents to disclosures concerning Purchaser in the Proxy
Statement/Prospectus
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and the Registration Statement, or in any amendment or supplement
thereto, and in any related filing or disclosures of White River.
6. REPRESENTATION AND WARRANTIES
X. Xxxxx River represents and warrants to the Purchaser that:
(i) White River has filed the Registration Statement with the
Commission with respect to the Shares, and the Registration
Statement has been declared effective by the Commission.
(ii) White River has been duly incorporated and is a validly existing
corporation under the laws of the State of Indiana, with the
corporate power and authority to perform its obligations under
this Agreement.
(iii)The execution, delivery and performance of this Agreement by
White River and the consummation by White River of the
transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action of White River. This
Agreement, when duly executed and delivered by the Purchaser,
will constitute a valid and legally binding agreement of White
River enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(iv) The Shares, when issued and delivered by White River after
payment therefor as contemplated hereby, will be validly issued,
fully paid and nonassessable.
(v) The execution and delivery of this Agreement, the consummation by
White River of the transactions contemplated hereby and the
compliance by White River with the terms of this Agreement do not
violate the Articles of Incorporation or Bylaws of White River or
any applicable statute or any order, judgment, decree, rule or
regulation of any court or governmental agency or body having
jurisdiction over White River or any of its properties or assets.
No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the valid authorization, execution, delivery
and performance by White River of this Agreement, the issuance of
the Shares, or the consummation by White River of the other
transactions contemplated by this Agreement, except such as may
be required and have been obtained, or will be obtained as of the
Closing, under the Securities Act of 1933, as amended and
applicable state "blue sky" laws.
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(vi) The Registration Statement contains all material statements which
are required to be stated therein and does not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(vii)White River has received binding subscriptions from its
principal shareholders, directors, director nominees and
management for at least [____________] Shares in the aggregate as
part of the Offering.
B. The Purchaser represents and warrants to White River that:
(i) As of the date of this Agreement, the Purchaser beneficially owns
the number of shares of White River Common Stock set forth on the
signature page and does not have any short positions in White
River Common Stock. As of the Record Date, Purchaser beneficially
owned (determined based on economic interests held by or
attributable to Purchaser) the number of shares, if any, of UAC
common stock set forth on the signature page as Purchaser's
"Record Date holdings of UAC common stock."
(ii) If an entity, the Purchaser is the type of entity described on
the signature page, was duly formed and is validly existing and
in good standing under the laws of its state of formation, with
the power and authority to perform its obligations under this
Agreement.
(iii)The execution, delivery and performance of this Agreement by the
Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary action of the Purchaser. This Agreement, when duly
executed and delivered by White River, will constitute a valid
and legally binding instrument, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability now or hereinafter in effect relating to or
affecting creditors' rights and to general equity principles.
(iv) The Purchaser is not insolvent and has sufficient cash funds on
hand to purchase the Shares on the terms and conditions contained
in this Agreement and will have such funds on the Closing Date.
The Purchaser has, simultaneously with or prior to the execution
and delivery of this Agreement, provided White River with
evidence or substantiated that such Purchaser has the financial
means to satisfy its financial obligations under this Agreement.
The foregoing evidence and substantiation is a true and accurate
representation of such means.
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(v) The execution and delivery of this Agreement, the consummation by
the Purchaser of the transactions contemplated hereby and the
compliance by the Purchaser, with the terms hereof, do not
violate the organizational documents of the Purchaser or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Purchaser is a party or by which the Purchaser is bound,
except as would not have a material adverse affect on the
financial condition of Purchaser or its right or ability to
perform this Agreement, or any applicable law or any order,
judgment, decree, rule or regulation of any court or governmental
agency or body, having jurisdiction over the Purchaser or any of
its properties or assets. No consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body, is required for the valid
authorization, execution, and delivery by the Purchaser of this
Agreement or the consummation by the Purchaser of the
transactions contemplated by this Agreement.
(vi) The Purchaser has not entered into any contracts, arrangements,
understandings or relationships (legal or otherwise) with any
person or persons (other than White River) with respect to the
securities of White River, including, but not limited to transfer
or voting any of the securities, finder's fees, joint ventures,
loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or
withholding of proxies.
7. CLOSING CONDITIONS
The respective obligations of the Purchaser and White River to consummate
the purchase and sale of the Shares shall be subject, in the discretion of White
River or the Purchaser, as the case may be, to the condition that (i) all
representations and warranties and other statements of the other party are, at
and as of the Closing Time, true and correct in all material respects, (ii) the
other party shall have performed all of its obligations hereunder theretofore to
be performed in all material respects, and (iii) no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission.
8. TERMINATION
A. This Agreement shall terminate upon mutual written consent of the
parties hereto. In addition, White River may terminate this Agreement
if it is not in material breach of its obligations under this
Agreement and there has been a material breach of any representation,
warranty, covenant or agreement contained in this Agreement on the
part of the Purchaser. Purchaser may terminate this Agreement if it is
not in material breach of its obligations under this Agreement and
there has
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been a material breach of any representation, warranty, covenant or
agreement contained in this Agreement on the part of White River.
Either of the parties may terminate this Agreement by written notice
to the other if the transactions contemplated hereby are not
consummated on or before September 1, 2005, unless such
nonconsummation is a result of a breach of this Agreement by the party
seeking to terminate.
X. Xxxxx River and the Purchaser hereby agree that any termination of
this Agreement pursuant to Section 8A (other than termination in the
event of a breach of this Agreement by the Purchaser or White River or
misrepresentation of any of the statements made herein by the
Purchaser or White River) shall be without liability to White River or
the Purchaser.
9. FUTURE ACQUISITION AND DISPOSITION OF SHARES
The Purchaser agrees with White River that:
A. During the period beginning on the date of this Agreement and
continuing until the Closing Date, Purchaser will not offer, sell,
contract to sell or otherwise dispose of, or bid for, purchase,
contract to purchase or otherwise acquire, any shares of White River
Common Stock, except pursuant to any rights it is granted as a
shareholder in the Offering and this Agreement, without the prior
written consent of White River.
B. Unless Purchaser is registered under the Investment Company Act of
1940, as amended, Purchaser will not sell or transfer any shares of
White River Common Stock acquired pursuant to this Agreement and the
Offering for a period of three months following the Closing Date.
C. If, following the subscription offering, Purchaser will own 5% or more
of the outstanding White River Common Stock, Purchaser will not sell,
during the three-year period following the Closing Date, a number of
shares of White River Common Stock that would cause Purchaser's
ownership percentage to go below its lowest ownership percentage in
the three-year testing period immediately preceding such proposed
sale.
10. NOTICES
All communications hereunder will be in writing and, if to White River,
will be mailed, delivered or faxed and confirmed to White River at White River
Capital, Inc. x/x Xxxxxx Xxxxx Xxxxxxx XXX, 0000 El Tordo, X.X. Xxx 0000, Xxxxxx
Xxxxx Xx, XX 00000, Facsimile: (000) 000-0000, Attention: Xxxx X. Xxx, President
with a copy to Xxxx X. Xxx, Esq., Xxxxxx & Xxxxxxxxx LLP, 00 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Facsimile: (000) 000-0000; and if to the
Purchaser, will be mailed, delivered or faxed and confirmed to it at the address
on the signature page.
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11. BINDING EFFECT
This Agreement shall be binding upon, and shall inure solely to the benefit
of, each of the parties hereto, and each of their respective heirs, executors,
administrators, successors and permitted assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No party may
assign any of its rights or obligations hereunder to any other person or entity
without the prior written consent of the other party.
12. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Indiana (excluding principles of conflicts of laws) in
effect at the time of the execution hereof.
13. EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
counterparts when so executed shall be deemed to be an original, but all such
respective counterparts shall together constitute but one and the same
instrument.
14. ENTIRE AGREEMENT
This Agreement represents the entire understanding of the parties with
respect to the matters addressed in this Agreement and supersedes all prior
written and oral understanding concerning the subject matter of this Agreement.
[signature page follows]
SIGNATURE PAGE
The Purchaser and White River have executed this Agreement as of the
day and year first above written.
PURCHASER INFORMATION
(must be completed)
1. Name of Purchaser: ________________________________________
2. Purchaser's Address: ________________________________________
________________________________________
________________________________________
Facsimile number
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3. (a) Record Date holdings of UAC common stock: ________________________Shares
(b) UAC Record Date Percentage [(a) divided by 31,019,150]: ______ %
(c) Basic Subscription Amount [(b) times 3,500,000]:__________________Shares*
*Subject to adjustment as provided in the Registration Statement
4. Number of shares of White River Common Stock beneficially owned by
Purchaser as of the date of this Agreement (giving effect to the share
exchange with Union Acceptance Corporation) (See section 6B(i)):
__________________Shares
5. Maximum Standby Purchase Commitment
(See Section 2B): __________________Shares
6. Minimum Standby Purchase Commitment
(See Section 2C): __________________Shares
7. If purchaser is an entity, specify type of entity and state of formation:
------------------------
[entity type]
------------------------
[state of formation]
[__________Purchaser_____________] WHITE RIVER CAPITAL, INC.
By: By:
---------------------------- ---------------------------------
Name: Name: Xxxx X. Xxx
Title: Title: President
Date: , 2005 Date: , 2005
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