Exhibit 10.18
REDWOOD STATUTORY TRUST II
REDWOOD EMPIRE BANCORP
SUBSCRIPTION AGREEMENT
July 22, 2003
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among Redwood Statutory
Trust II (the "Trust"), a statutory trust created under the Connecticut
Statutory Trust Act (Chapter 615 of Title 34 of the Connecticut General
Statutes, Section 500, et seq.), Redwood Empire Bancorp, a California
corporation, with its principal offices located at 0000 Xxxxx Xxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxxx 00000 (the "Company" and, collectively with the Trust, the
"Offerors"), and First Tennessee Bank National Association (the "Purchaser"),
and, for purposes of the rights and obligations in Sections 1.2 and 1.4 and
Article III only, FTN Financial Capital Markets and Xxxxx, Xxxxxxxx & Xxxxx,
Inc. (the "Placement Agents").
RECITALS:
A. The Trust desires to issue 10,000 of its Fixed/Floating Rate Capital
Securities (the "Capital Securities"), liquidation amount $1,000.00 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration") by and among the Company, U.S. Bank
National Association ("U.S. Bank"), the administrators named therein, and the
holders (as defined therein), which Capital Securities are to be guaranteed by
the Company with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the terms of a Guarantee Agreement between
the Company and U.S. Bank, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be combined
with the proceeds from the sale by the Trust to the Company of its common
securities, and will be used by the Trust to purchase an equivalent amount of
Fixed/Floating Rate Junior Subordinated Deferrable Interest Debentures of the
Company (the "Debentures") to be issued by the Company pursuant to an indenture
to be executed by the Company and U.S. Bank, as trustee (the "Indenture"); and
C. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Agreement, the Purchaser hereby agrees to
purchase from the Trust 10,000 Capital Securities at a price equal to $1,000.00
per Capital Security (the "Purchase Price") and the Trust agrees to sell such
Capital Securities to the Purchaser for said Purchase Price. The rights and
preferences of the Capital Securities are set forth in the Declaration. The
Purchase Price is payable in immediately available funds on July 22, 2003, or
such other business day as may be designated by the Purchaser, but in no event
later than July 25, 2003 (the "Closing Date"). The Offerors shall provide the
Purchaser wire transfer instructions no later than 1 day following the date
hereof.
1.2. As a condition to its purchase of the Capital Securities, Purchaser
shall enter into the Custodian Agreement, the form of which is attached hereto
as Exhibit A (the "Custodian Agreement") and, in accordance therewith, the
certificate for the Capital Securities shall be delivered by the Trust on the
Closing Date to the custodian in accordance with the Custodian Agreement. On or
before the
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Purchase Date (as defined below), Purchaser shall take all actions necessary or
advisable to cause the Capital Securities to be delivered in accordance with the
terms of the Custodian Agreement. Purchaser shall not transfer the Capital
Securities to any person or entity except in accordance with the terms of the
Custodian Agreement.
1.3. The Placement Agreement, dated July 17, 2003 (the "Placement
Agreement"), among the Offerors and the Placement Agents identified therein (the
"Placement Agents") includes certain representations and warranties, covenants
and conditions to closing and certain other matters governing the Offering. The
Placement Agreement is hereby incorporated by reference into this Agreement and
the Purchaser shall be entitled to each of the benefits of the Placement Agents
and the Purchaser under the Placement Agreement and shall be entitled to enforce
the obligations of the Offerors under such Placement Agreement as fully as if
the Purchaser were a party to such Placement Agreement.
1.4. Purchaser hereby grants to the Placement Agents an option (the "Call
Option") to purchase, or arrange for the purchase of, the Capital Securities in
whole or in part from time to time, in an amount not to exceed their stated
aggregate liquidation amount of $10,000,000.00. The Call Option may be exercised
by the Placement Agents at any time and from time to time until the first to
occur of: (i) the transfer of all the Capital Securities from the Purchaser, or
(ii) the redemption, exchange or maturity of all the Capital Securities held by
the Purchaser. A Call Option shall be exercised by delivering to Purchaser an
exercise notice substantially in the form of Exhibit B attached hereto, such
notice to specify the date on which the Capital Securities shall be purchased
(the "Purchase Date") and the amount of the Capital Securities to be purchased.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that none of Capital
Securities, the Debentures nor the Guarantee have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable securities law, are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act, and may not be
offered, sold, pledged or otherwise transferred by the Purchaser except in
compliance with the registration requirements of the Securities Act or any other
applicable securities laws, pursuant to an exemption therefrom or in a
transaction not subject thereto.
2.2. The Purchaser represents and warrants that, except as contemplated
under Section 1.4 hereof, it is purchasing the Capital Securities for its own
account, for investment, and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the Securities Act or
other applicable securities laws, subject to any requirement of law that the
disposition of its property be at all times within its control and subject to
its ability to resell such Capital Securities pursuant to an effective
registration statement under the Securities Act or under Rule 144A or any other
exemption from registration available under the Securities Act or any other
applicable securities law.
2.3. The Purchaser represents and warrants that neither the Offerors nor
the Placement Agents are acting as a fiduciary or financial or investment
adviser for the Purchaser.
2.4. The Purchaser represents and warrants that it is not relying (for
purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the Offerors or of the
Placement Agents.
2.5. The Purchaser represents and warrants that (a) it has consulted with
its own legal, regulatory, tax, business, investment, financial and accounting
advisers in connection herewith to the extent it has
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deemed necessary, (b) it has had a reasonable opportunity to ask questions of
and receive answers from officers and representatives of the Offerors concerning
their respective financial condition and results of operations and the purchase
of the Capital Securities, and any such questions have been answered to its
satisfaction, (c) it has had the opportunity to review all publicly available
records and filings concerning the Offerors and it has carefully reviewed such
records and filings that it considers relevant to making an investment decision,
and (d) it has 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 the Offerors or the Placement Agents.
2.6. The Purchaser represents and warrants that it is a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act. If the
Purchaser is a dealer of the type described in paragraph (a)(1)(ii) of Rule 144A
under the Securities Act, it owns and invests on a discretionary basis not less
than U.S. $25,000,000.00 in securities of issuers that are not affiliated with
it. The Purchaser is not a participant-directed employee plan, such as a 401(k)
plan, or any other type of plan referred to in paragraph (a)(1)(i)(D) or
(a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F)
of Rule 144A that holds the assets of such a plan, unless investment decisions
with respect to the plan are made solely by the fiduciary, trustee or sponsor of
such plan.
2.7. The Purchaser represents and warrants that on each day from the date
on which it acquires the Capital Securities through and including the date on
which it disposes of its interests in the Capital Securities, either (i) it is
not (a) an "employee benefit plan" (as defined in Section 3(3) of the United
States Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
which is subject to the provisions of Part 4 of Subtitle B of Title I of ERISA,
or any entity whose underlying assets include the assets of any such plan (an
"ERISA Plan"), (b) any other "plan" (as defined in Section 4975(e)(1) of the
United States Internal Revenue Code of 1986, as amended (the "Code")) which is
subject to the provisions of Section 4975 of the Code or any entity whose
underlying assets include the assets of any such plan (a "Plan"), (c) an entity
whose underlying assets include the assets of any such ERISA Plan or other Plan
by reason of Department of Labor regulation section 2510.3-101 or otherwise, or
(d) a governmental or church plan that is subject to any federal, state or local
law which is substantially similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code (a "Similar Law"); or (ii) the purchase, holding and
disposition of the Capital Securities by it will satisfy the requirements for
exemptive relief under Prohibited Transaction Class Exemption ("PTCE") 00-00,
XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or a similar exemption, or, in the
case of a plan subject to a Similar Law, will not result in a non-exempt
violation of such Similar Law.
2.8. The Purchaser represents and warrants that it is acquiring the Capital
Securities as principal for its own account for investment and, except as
contemplated under Section 1.4 hereof, not for sale in connection with any
distribution thereof. It was not formed solely for the purpose of investing in
the Capital Securities, and additional capital or similar contributions were not
specifically solicited from any person owning a beneficial interest in it for
the purpose of enabling it to purchase any Capital Securities. The Purchaser is
not a (i) partnership, (ii) common trust fund or (iii) special trust, pension,
profit sharing or other retirement trust fund or plan in which the partners,
beneficiaries or participants, as applicable, may designate the particular
investments to be made or the allocation of any investment among such partners,
beneficiaries or participants, and it agrees that it shall not hold the Capital
Securities for the benefit of any other person and shall be the sole beneficial
owner thereof for all purposes and that it shall not sell participation
interests in the Capital Securities or enter into any other arrangement pursuant
to which any other person shall be entitled to a beneficial interest in the
distribution on the Capital Securities. The Capital Securities purchased
directly or indirectly by the Purchaser constitute an investment of no more than
40% of its assets. The Purchaser understands and agrees that any purported
transfer of the Capital Securities to a purchaser which would cause the
representations and warranties of
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Section 2.6 and this Section 2.8 to be inaccurate shall be null and void ab
initio and the Offerors retain the right to resell any Capital Securities sold
to non-permitted transferees.
2.9. The Purchaser represents and warrants that it has full power and
authority to execute and deliver this Agreement, to make the representations and
warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for Capital Securities and
perform its obligations pursuant to this Agreement.
2.10. The Purchaser represents and warrants that no filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any governmental body, agency or court having jurisdiction over the
Purchaser, other than those that have been made or obtained, is necessary or
required for the performance by the Purchaser of its obligations under this
Agreement or to consummate the transactions contemplated herein.
2.11. The Purchaser represents and warrants that this Agreement has been
duly authorized, executed and delivered by the Purchaser.
2.12. The Purchaser understands and acknowledges that the Company will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agrees that, if any of the acknowledgments,
representations, warranties or agreements deemed to have been made by it by its
purchase of the Capital Securities are no longer accurate, it shall promptly
notify the Company.
2.13. The Purchaser understands that no public market exists for any of the
Capital Securities, and that it is unlikely that a public market will ever exist
for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: Redwood Empire Bancorp
0000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
To the Purchaser: First Tennessee Bank National Association
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Fax: 000-000-0000
Unless otherwise expressly provided herein, notices shall be
deemed to have been given on the date of mailing, except notice of change of
address, which shall be deemed to have been given when received.
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3.2. This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3. Upon the execution and delivery of this Agreement by the Purchaser,
this Agreement shall become a binding obligation of the Purchaser with respect
to the purchase of Capital Securities as herein provided.
3.4. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY
OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5. The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
3.6. This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
3.7. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that all of the Offerors' and the Purchaser's rights and privileges
shall be enforceable to the fullest extent permitted by law.
Signatures appear on the following page
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IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the day
and year first written above.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Work
------------------------------
Print Name: Xxxxx X. Work
----------------------
Title: AVP
---------------------------
REDWOOD EMPIRE BANCORP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: President & CEO
---------------------------
REDWOOD STATUTORY TRUST II
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------
Title: Administrator
--------------------------
FTN FINANCIAL CAPITAL MARKETS
(for purposes of the rights and obligations in
Sections 1.2 and 1.4 and Article III only)
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
XXXXX, XXXXXXXX & XXXXX, INC.
(for purposes of the rights and obligations
in Sections 1.2 and 1.4 and Article III only)
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
----------------------------
Title: Managing Director
-------------------------
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EXHIBIT A TO SUBSCRIPTION AGREEMENT
FORM OF CUSTODIAN AGREEMENT
This Custodian Agreement (this "Agreement") is made and entered into as of
July 22, 2003 by and among FTN Financial Capital Markets, a division of First
Tennessee Bank National Association, and Xxxxx, Xxxxxxxx & Xxxxx, Inc. (the
"Placement Agents"), Redwood Empire Bancorp, a California corporation (the
"Company"), First Tennessee Bank National Association, a national banking
association (the "Purchaser" and, together with the Company and the Placement
Agents, the "Interested Parties") and U.S. Bank National Association, a national
banking association (the "Custodian").
RECITALS
A. The Purchaser intends to purchase from Redwood Statutory Trust II, a
Connecticut statutory trust (the "Trust"), $10,000,000.00 aggregate liquidation
amount of the Trust's Fixed/Floating Rate Capital Securities (the "Capital
Securities").
B. The Purchaser intends to grant an option (the "Call Option") to the
Placement Agents to purchase the Capital Securities at any time and from time to
time immediately following the date hereof in an amount not to exceed the
Capital Securities' aggregate liquidation amount.
C. The Interested Parties intend to provide for the custody of the Capital
Securities and certain other securities on the terms set forth herein.
D. The Custodian is willing to hold and administer such securities and to
distribute the securities held by it in accordance with the agreement of the
Interested Parties and/or arbitral or judicial orders and decrees as set forth
in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged by the parties by
their execution hereof), the parties agree as follows:
1. Delivery of Securities. On or before the date hereof:
(a) The Company shall deliver to the Custodian a signed, authenticated
Capital Securities certificate, with the Purchaser designated as owner
thereof (the "Original Securities"). The Custodian shall have no
responsibility for the genuineness, validity, market value, title or
sufficiency for any intended purpose of the Original Securities.
(b) The Company shall deliver to the Custodian five signed, unauthenticated
and undated Capital Securities certificates with no holder designated (the
"Replacement Securities"). The Custodian shall have no responsibility for
the genuineness, validity, market value, title or sufficiency for any
intended purpose of the Replacement Securities.
2. Timing of Release from Custody.
(a) Upon receipt of a copy of an option exercise notice to be delivered in
connection with the Placement Agents' exercise of a Call Option, on the
effective date set forth in such option exercise notice, the Custodian
shall:
(i) Deliver the Original Securities certificate to U.S. Bank National
Association, as Institutional Trustee (the "Trustee") under the
Amended and Restated Declaration of
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Trust, dated as of the date hereof, among the Trustee, the Company and
the administrators named therein (the "Declaration") for the purpose
of canceling the Original Securities certificate in accordance with
the terms of the Declaration; and
(ii) Deliver the Replacement Securities certificate(s) in the amount
designated in the option exercise notice to the Trustee for the
purpose of completing and authenticating the Replacement Securities
certificate(s) in accordance with the terms of the Declaration.
Upon expiration of the Call Option, this Agreement shall terminate and the
Custodian and the Interested Parties shall be released from all obligations
hereunder.
3. Concerning the Custodian.
(a) Each Interested Party acknowledges and agrees that the Custodian (i)
shall not be responsible for any of the agreements referred to or described
herein (including without limitation the Declaration), or for determining
or compelling compliance therewith, and shall not otherwise be bound
thereby, (ii) shall be obligated only for the performance of such duties as
are expressly and specifically set forth in this Agreement on its part to
be performed, each of which are ministerial (and shall not be construed to
be fiduciary) in nature, and no implied duties or obligations of any kind
shall be read into this Agreement against or on the part of the Custodian,
(iii) shall not be obligated to take any legal or other action hereunder
which might in its judgment involve or cause it to incur any expense or
liability unless it shall have been furnished with acceptable
indemnification, (iv) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction, instrument,
statement, certificate, request or other document furnished to it hereunder
and believed by it to be genuine and to have been signed or presented by
the proper person, and shall have no responsibility for determining the
accuracy thereof, and (v) may consult counsel satisfactory to it, including
in-house counsel, and the opinion or advice of such counsel in any instance
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or
omitted to be taken by it hereunder except in the case of the Custodian's
negligence or willful misconduct in breach of the terms of this Agreement.
In no event shall the Custodian be liable for indirect, punitive, special
or consequential damage or loss (including but not limited to lost profits)
whatsoever, even if the Custodian has been informed of the likelihood of
such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on
account of any action or omission of any book-entry depository, securities
intermediary or other subcustodian employed by the Custodian than any such
book-entry depository, securities intermediary or other subcustodian has to
the Custodian, except to the extent that such action or omission of any
book-entry depository, securities intermediary or other subcustodian was
caused by the Custodian's own negligence, bad faith or willful misconduct
in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of the
Company, and the Custodian assumes no responsibility for the correctness of
the same. The Custodian makes no representations as to the validity or
sufficiency of this Agreement or the Capital Securities. The Custodian
shall not be accountable for the use or application by the Company of any
Capital Securities or the proceeds of any Capital Securities.
4. Compensation, Expense Reimbursement and Indemnification.
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(a) The Custodian hereby waives its customary fees for services rendered
hereunder.
(b) Each of the Interested Parties agree, jointly and severally, to
reimburse the Custodian on demand for all costs and expenses incurred in
connection with the administration of this Agreement or the performance or
observance of its duties hereunder which are in excess of its customary
compensation for normal services hereunder, including without limitation,
payment of any legal fees and expenses incurred by the Custodian in
connection with resolution of any claim by any party hereunder.
(c) Each of the Interested Parties covenant and agree, jointly and
severally, to indemnify the Custodian (and its directors, officers and
employees) and hold it (and such directors, officers and employees)
harmless from and against any loss, liability, damage, cost and expense of
any nature incurred by the Custodian arising out of or in connection with
this Agreement or with the administration of its duties hereunder,
including but not limited to attorney's fees and other costs and expenses
of defending or preparing to defend against any claim of liability unless
and except to the extent such loss, liability, damage, cost and expense
shall be caused by the Custodian's negligence, bad faith, or willful
misconduct. The provisions in this paragraph 4 shall survive the expiration
of this Agreement.
5. Voting Rights. The Custodian shall be under no obligation to preserve,
protect or exercise rights in the Original Securities, and shall be responsible
only for reasonable measures to maintain the physical safekeeping thereof, and
otherwise to perform and observe such duties on its part as are expressly set
forth in this Agreement. The Custodian shall not be responsible for forwarding
to any Party, notifying any Party with respect to, or taking any action with
respect to, any notice, solicitation or other document or information, written
or otherwise, received from an issuer or other person with respect to the
Original Securities, including but not limited to, proxy material, tenders,
options, the pendency of calls and maturities and expiration of rights.
6. Resignation. The Custodian may at any time resign as Custodian hereunder by
giving thirty (30) days' prior written notice of resignation to each of the
Interested Parties. Prior to the effective date of the resignation as specified
in such notice, the Interested Parties will issue to the Custodian a written
instruction authorizing redelivery of the Original Securities and the
Replacement Securities to a bank or trust company that they select as successor
to the Custodian hereunder. If, however, the Interested Parties shall fail to
name such a successor custodian within twenty days after the notice of
resignation from the Custodian, the Placement Agents shall be entitled to name
such successor custodian. If no successor custodian is named by the Interested
Parties or the Placement Agents, the Custodian may apply to a court of competent
jurisdiction for appointment of a successor custodian.
7. Dispute Resolution. It is understood and agreed that should any dispute arise
with respect to the delivery, ownership, right of possession, and/or disposition
of the Original Securities or the Replacement Securities, or should any claim be
made upon the Custodian, the Original Securities or the Replacement Securities
by a third party, the Custodian upon receipt of notice of such dispute or claim
is authorized and shall be entitled (at its sole option and election) to retain
in its possession without liability to anyone, all or any of said Original
Securities and Replacement Securities until such dispute shall have been settled
either by the mutual written agreement of the parties involved or by a final
order, decree or judgment of a court in the United States of America, the time
for perfection of an appeal of such order, decree or judgment having expired.
The Custodian may, but shall be under no duty whatsoever to, institute or defend
any legal proceedings which relate to the Original Securities and Replacement
Securities.
8. Consent to Jurisdiction and Service. Each of the Interested Parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
in the Commonwealth of Massachusetts and of any Federal court located in said
Commonwealth in connection with any actions or proceedings brought
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against any of the Interested Parties (or each of them) by the Custodian arising
out of or relating to this Agreement. In any such action or proceeding, the
Interested Parties each hereby absolutely and irrevocably (i) waives any
objection to jurisdiction or venue, (ii) waives personal service of any summons,
complaint, declaration or other process, and (iii) agrees that the service
thereof may be made by certified or registered first-class mail directed to such
party, as the case may be, at their respective addresses in accordance with
paragraph 10 hereof.
9. Force Majeure. The Custodian shall not be responsible for delays or failures
in performance resulting from acts beyond its control. Such acts shall include
but not be limited to acts of God, strikes, lockouts, riots, acts of war,
epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
10. Notices.
(a) Any notice permitted or required hereunder shall be in writing, and
shall be sent by personal delivery, overnight delivery by a recognized
courier or delivery service, mailed by registered or certified mail, return
receipt requested, postage prepaid, or by confirmed facsimile accompanied
by mailing of the original on the same day by first class mail, postage
prepaid, in each case the parties at their address set forth below (or to
such other address as any such party may hereafter designate by written
notice to the other parties).
If to the Placement Agents:
FTN Financial Capital Markets
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 0xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, General Counsel
If to the Company:
Redwood Empire Bancorp
0000 Xxxxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
If to the Purchaser:
First Tennessee Bank National Association
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
If to the Custodian:
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U.S. Bank National Association
0 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Services Division
Attention: Xxxx X. Xxxxx
Fax: 000-000-0000
11. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding upon the respective
parties hereto and their heirs, executors, successors and assigns.
(b) Modifications. This Agreement may not be altered or modified without
the express written consent of the parties hereto. No course of conduct
shall constitute a waiver of any of the terms and conditions of this
Agreement, unless such waiver is specified in writing, and then only to the
extent so specified. A waiver of any of the terms and conditions of this
Agreement on one occasion shall not constitute a waiver of the other terms
of this Agreement, or of such terms and conditions on any other occasion.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts.
(d) Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and
other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, optical disk, micro-card,
miniature photographic or other similar process. The parties agree that any
such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is
in existence and whether or not such reproduction was made by a party in
the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
(e) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
signatures appear on the following page
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1034358.1
Redwood Empire Bancorp/Subscription Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first above written.
FTN FINANCIAL CAPITAL MARKETS
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
XXXXX, XXXXXXXX & XXXXX, INC.
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
REDWOOD EMPIRE BANCORP
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
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1034358.1
Redwood Empire Bancorp/Subscription Agreement
EXHIBIT B TO SUBSCRIPTION AGREEMENT
FORM OF OPTION EXERCISE NOTICE
[DATE]
First Tennessee Bank National Association
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Ladies and Gentlemen:
The undersigned hereby exercises its option to purchase, or arrange for
the purchase of [_________] of the Capital Securities of Redwood Statutory Trust
II in accordance with the terms of the Subscription Agreement dated July 22,
2003 among you, the undersigned, Redwood Empire Bancorp and Redwood Statutory
Trust II (the "Offerors"), such purchase to be effective on [DATE OF PURCHASE].
In accordance with Section 7.9 of the Placement Agreement dated July 17, 2003
between the Offerors and the undersigned (the "Placement Agreement"), periodic
reports shall be delivered to [_______________] on each March 17, June 17,
September 17 and December 17 during the term of the Capital Securities,
commencing [___________], in the form attached thereto. Capitalized terms used
in this notice and not otherwise defined shall have the meanings ascribed to
such terms in the Placement Agreement.
By copy of this notice, the undersigned hereby instructs the Custodian
to deliver the Original Securities certificate to U.S. Bank National
Association, as Institutional Trustee (the "Trustee") under the Amended and
Restated Trust Agreement dated July 22, 2003 among the Trustee, Redwood Empire
Bancorp and the administrative trustees named therein (the "Trust Agreement")
for cancellation in accordance with the terms of the Trust Agreement and to
deliver the Replacement Securities certificate to the Trustee for authentication
in accordance with the terms of the Trust Agreement.
By copy of this notice, the Institutional Trustee is hereby instructed
to make the Replacement Securities certificate payable to [______________] in
the liquidation amount of [_________] and to authenticate and deliver the
Replacement Securities certificate to [_____________] on or before the [DATE OF
PURCHASE].
FTN FINANCIAL CAPITAL MARKETS
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXX, XXXXXXXX & XXXXX, INC.
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
cc: Redwood Empire Bancorp
U.S. Bank National Association
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1034358.1
Redwood Empire Bancorp/Subscription Agreement