STOCK PURCHASE AGREEMENT
AGREEMENT made this 20th day of April, 1989, by and between PENNSYLVANIA
STATE BANK ("Bank") and NATIONAL PENN BANCSHARES, INC. ("National Penn").
BACKGROUND
A. Bank is a Pennsylvania banking institution being organized to conduct
business as a commercial bank under the laws of the Commonwealth of
Pennsylvania.
B. National Penn is a bank holding company organized under the laws of the
Commonwealth of Pennsylvania.
C. The Pennsylvania Department of Banking has approved an Application for
Permission to Establish a State-Chartered Banking Institution filed by Bank.
D. Bank will solicit offers from subscribers for a minimum of 430,000 and a
maximum of 750,000 shares of common stock, par value $5 per share, of Bank, at
an offering price of $10 per share, or $4,300,000 or $7,500,000 in the aggregate
(the "Initial Offering").
E. Subject to the conditions set forth in Section 20 hereof (collectively,
the "Conditions"), National Penn will subscribe for a minimum of 81,700 and a
maximum of 142,500 shares of common stock of Bank, which amounts constitute
19% of the minimum and maximum number of shares of common stock of Bank being
offered by
Bank, respectively, in the Initial Offering. By execution of this Agreement and
by acceptance of such subscription, Bank agrees (1) to issue, concurrently with
the issuance of shares of Bank's common stock to National Penn, stock purchase
warrants to National Penn and/or such other parties as may be designated by
National Penn with the prior written approval of Bank (which approval shall not
be unreasonably withheld), which, in the aggregate, are exercisable for an
initial number of shares of Bank's common stock equal sum of (a) 5% of the total
number of shares of Bank's common stock issued by Bank in the Initial Offering
up to and including 500,000 shares and (b) 12 1/2 % of the number of shares of
Bank's common stock issued by the Bank in the Initial Offering in excess of
500,000 shares, all such warrants to be issued on the same terms and conditions,
including price, as all other stock purchase warrants being issued by Bank to
persons who are organizers or directors of Bank, including without limitation a
term of seven years and an exercise price of $10 per share, and (2) that the
total amount of stock purchase warrants, options or the like issued or to be
issued by Bank, including the warrants issuable to National Penn or its
designees pursuant to preceding clause (1), shall not exceed 15% of the total
number of shares of Bank's common stock issued in the Initial Offering, as set
forth on Exhibit "A" attached hereto and made a part hereof, except as expressly
permitted in this Agreement.
F. National Penn will deposit $200,000 with the escrow agent for Bank's
offering, Xxxxxxxx Bank (the "Escrow Agent"), to be applied, subject to the
terms of this Agreement, to National Penn's obligation for the aggregate
purchase price for the shares of Bank's stock to be purchased by National Penn
pursuant to its subscription on and this Agreement. Such deposit will be made by
wire transfer on the business day immediately succeeding the date on which this
Agreement is executed. The remaining balance of the aggregate purchase price
payable by National Penn shall be deposited with the Escrow Agent upon
satisfaction of the
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Conditions. If all of the Conditions are not satisfied on or before July 31,
1989, Bank and the Escrow Agent shall return the $200,000, together with
interest thereon, to National Penn, and this Agreement shall be automatically
terminated and be of no further force and effect unless on or before July 31,
1989, National Penn shall have given Bank written notice of the extension of
this Agreement to a date not later than October 31, 1989, in which case Bank and
the Escrow Agent shall return the $200,000, together with interest thereon, to
National Penn and this Agreement shall be automatically terminated and be of no
further force and effect if the Conditions are not satisfied on or before
October 31, 1989.
G. On the date of the conclusion by Bank of the Initial Offering, or upon
the satisfaction of the Conditions set forth in Paragraph 20, whichever later
occurs, Bank will issue to National Penn, in accordance with Paragraphs E and F
above (1) the number of shares of Bank's common stock as shall equal not less
than 19% of the aggregate number of shares of common stock issued by Bank in the
Initial Offering and (2) stock purchase warrants in the amount and on the terms
and conditions provided in Paragraph E above.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Incorporation of Background. The "Background" section of this Agreement
is hereby incorporated by reference into this Agreement and the parties hereto
expressly agree to perform their respective executory obligations therein set
forth.
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2. Grant of Purchase Rights. In the event Bank, at anytime, issues any
shares of its common stock, including without any shares which may be issued as
a result of the exercise of warrants, implementation of any stock option program
or any Bank qualified employee stock ownership plan or trust or for sale to and
purchase by any Bank profit-sharing plan and trust or Bank qualified employee
pension plan (any such issuance being herein referred to as a "Sale Event"),
then National Penn shall have the purchase, on the terms and conditions herein
set forth, such number (or any lesser number) of shares of Bank's common stock
as, when added to the number of shares of Bank's common stock issued in the Sale
Event, constitutes 20% of the total, such percentage to be calculated as set
forth in Paragraph 15 below. Nothing contained in this Paragraph 2 or elsewhere
herein shall be construed to limit in any manner the right of National Penn to
purchase shares of common stock of Bank in the open market from time to time in
any amount.
3. Reservation of Shares. Bank shall, at all times, have authorized shares
of common stock that are not outstanding duly reserved for issuance or sale to
National Penn upon exercise of National Penn's purchase nights provided in
Paragraph 2 hereof. Bank shall reserve shares of its common stock for issuance
or sale to National Penn hereunder, prior to or simultaneously with any
occurrence of a Sale Event or any issuance of options, warrants or rights whose
implementation will result in a Sale Event, in such number as shall be necessary
for issuance to National Penn pursuant to Paragraph 2 above. Bank's obligations
under this Paragraph 3 shall lapse if, and only to the degree that, any such
option, warrant or right expires or is terminated without exercise, or upon the
termination of this Agreement
4. Purchase Price--Exercise of Warrants. If the Sale Event shall be the
issuance of shares of common stock of Bank, upon the
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exercise of stock purchase warrants or options granted to persons who are
organizers or directors of Bank, then the purchase price for each share of
common stock of Bank issuable to National Penn pursuant to Paragraph 2 of this
Agreement shall be a price per share equal to the fair market value of Bank's
common stock at the date of exercise of such warrants or options, determined by
a quotation obtained from a member of the National Association of Securities
Dealers, Inc. approved in advance by National Penn (the "Warrant Purchase
Price").
5. Purchase Price--Secondary Offering. If the Sale Event shall be the
issuance of shares of common stock of Bank pursuant to a public or limited
private offering or otherwise under circumstances not governed by Paragraph 4
hereof, then the purchase price for each share of common stock of Bank issuable
to National Penn under the provisions of Paragraph 2 of this Agreement shall be
the same price per share as is paid by the purchasers in such public or limited
private offering or other sale (the "Sale Purchase Price").
6. Notices to National Penn.
(a) If Bank takes any action that could result in National Penn having
a right to purchase any shares of common stock of Bank hereunder, Bank
shall concurrently give written notice to National Penn of such action and
of the reservation of shares for issuance or sale to National Penn
hereunder.
(b) If Bank issues any shares of common stock of Bank, Bank shall
concurrently give written notice to National Penn of such issuance.
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7. Exercise of Purchase Rights.
(a) National Penn may elect to exercise its right to purchase shares
of common stock of Bank hereunder by giving written notice of such
election, specifying therein the number of shares to be purchased, to Bank
at its principal place of business, within fourteen days after National
Penn's receipt of a written notice from Bank under Paragraph 6(b) hereof.
(b) Upon determination of the Warrant Purchase Price, pursuant to
Paragraph 4 hereof, or of the Sale Purchase Price, pursuant to Paragraph 5
hereof (whichever price shall be applicable referred to herein as the
"Price"), National Penn shall pay to Bank the aggregate amount of the Price
for all shares then being purchased within ten days of such determination.
(c) If the Price shall be determined in any instance to be less than
the then par value per share of Bank's common stock, then, notwithstanding
such determination, National Penn shall pay an amount per share equal to
the then par value of the purchased stock.
(d) Upon receipt of the aggregate amount of the Price for the number
of shares of common stock to be purchased, Bank shall immediately issue to
National Penn such shares by delivery to National Penn of a stock
certificate registered in the name of National Penn or its nominee
representing the shares so purchased.
8. Assignment by National Penn. This Agreement may be assigned by National
Penn without consent of Bank (i) to any wholly-owned subsidiary of National
Penn, in which case National
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Penn shall be responsible for such assignee's performance of its obligations
hereunder, (ii) to any party or entity which shall purchase from National Penn
shares of common stock of Bank in an aggregate amount equal to at least 19%
of the then issued and outstanding shares of common stock of Bank, or (iii) to
any successor by merger or consolidation to the business of National Penn;
provided, however, that prior to any such assignment under subparagraph 8(ii)
hereof, Bank shall have the right to purchase such shares at the same price as
is agreed to between National Penn and such party or entity within sixty days of
written notice of the intent of National Penn to sell or assign such shares or
within ten days of receipt of regulatory approval by Bank to purchase such
shares, whichever is later. Otherwise, National Penn shall not assign any of its
rights hereunder without first obtaining Bank's prior written consent. Written
notice of any such assignment shall be given to Bank. All references to
"National Penn" in this Agreement shall include any assignee permitted in this
Paragraph 8 and any permitted assignee of such assignee; any permitted assignee
shall be entitled to all of the rights and subject to all of the duties of
National Penn set forth in this Agreement.
9. Additional Classes of Voting Capital Stock. Bank agrees that in the
event it amends its Articles of Incorporation to authorize any additional
classes of capital stock (including the establishment of the rights of any
series or class of preferred stock) possessing the right to vote on matters
submitted to a vote of shareholders, whether as a separate class or together
with the common stock of Bank, National Penn shall have the right to purchase
such number of shares of such stock as are necessary to preserve National Penn's
right to maintain its percentage ownership of the outstanding voting capital
stock of Bank. The purchase price for each share of such stock to be sold to
National Penn under the provisions of this paragraph 9 shall be the same
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price per share as is paid by the purchasers in any public or limited private
offering or other sale of such stock.
10. Formation of Bank Holding Company. If Bank shall at any time propose to
merge with an interim bank organized under state law or an interim national
banking association or to take any other action in order to form a bank holding
company, then Bank shall cause the plan of merger or other applicable plan to
require such bank holding company to provide National Penn with rights to
purchase shares of capital stock of such bank holding company that are
substantially identical to those provided by Bank to National Penn in this
Agreement.
11. Future Warrants. Bank will not issue stock purchase warrants, options
or the like for shares of Bank's common stock except as expressly permitted in
this Agreement, including without limitation Paragraph E of the "Background"
Section of this Agreement. If Bank conducts an offering (other than the Initial
Offering) of shares of Bank's common stock that is managed and sold exclusively
through the efforts of the officers and directors of Bank and without the
involvement in any manner of an underwriter or broker, Bank may issue stock
purchase warrants with respect to shares of its common stock to such officers
and directors, in an aggregate amount not exceeding 10% of the number of shares
sold in such offering. Bank may also from time to time issue additional
warrants, options or the like with respect to Bank's common stock to officers or
employees of Bank in a reasonable amount, but only with the prior approval of
National Penn, which approval will not be unreasonably withheld. Any warrants
issued by Bank pursuant to the preceding two sentences shall have a term not in
excess of seven years, an exercise price per share of not less than the fair
market value of Bank's common stock at the time of issuance, and such other
terms and conditions as shall be contained in the stock purchase warrants
issuable by
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Bank in connection with the Initial Offering. The provisions of this Paragraph
11 shall expire automatically and this Paragraph 11 shall be of no further force
and effect on the tenth anniversary of the date of this Agreement.
12. Governing Law. This Agreement shall be construed in accordance with the
internal domestic laws (but not the conflict of laws provisions) of the
Commonwealth of Pennsylvania.
13. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and permitted assigns.
14. Issuance and Exercise Period Limitations. Bank shall use its best
efforts to avoid issuing any shares of its common stock between the twentieth
day and the last day of March, June, September or December of any year, or
issuing any options, warrants or rights whose implementation will result in a
Sale Event, which options, warrants or rights are exercisable between the
twentieth day and the last day of March, June, September or December of any
year.
15. Percentage Ownership Calculations. All calculations of the percentage
of ownership of shares of common stock of Bank to be made pursuant to the terms
of this Agreement, including without limitation those to be made pursuant to
Paragraph 2 of this Agreement, shall be made (a) on the basis of the number of
shares of common stock of Bank then issued and outstanding and (b) excluding
therefrom any shares of common stock of Bank issuable upon the conversion of any
convertible securities or upon the exercise of any options, warrants or other
rights or common stock equivalents then outstanding, and specifically excluding
therefrom any such securities then held by National Penn such as
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the stock purchase warrants referred to in Paragraph E in the Background to this
Agreement.
16. Time of the Essence. Time shall be of the essence in the performance of
this Agreement, and the failure of National Penn to give notice or make payment
within the time periods herein prescribed shall cause any option or right
arising hereunder to lapse and be void in that instance.
17. Notices. All notices arising hereunder shall be sent by certified mail,
return receipt requested, to the principal office of the party intended to
receive such notice, and shall be deemed received on the second business day
following such deposit in the mail.
18. Captions. The captions included herein are for convenience of reference
only and shall not affect the construction or interpretation of this Agreement.
19. Amendment of Agreement. This Agreement may be amended in writing signed
by both parties, by their respective duly authorized officers.
20. Conditions Precedent. The obligation of National Penn to consummate the
purchase of shares of Bank's common stock provided for in this Agreement is
subject to the satisfaction (or waiver by National Penn, except for paragraphs
(a) and (b) below) of the following conditions:
(a) The Board of Governors of the Federal Reserve System or the
Federal Reserve Bank of Philadelphia, acting under delegated authority, shall
have approved National Penn's purchase of up to 24.9% of the shares of common
stock of Bank issued and outstanding, and such approval shall not contain a
determination
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that National Penn will be in "control" of Bank or that Bank will be a
"subsidiary" of National Penn, as such terms are defined in the Federal
Reserve's Regulation Y at 12 C.F.R. ss.225, or any condition or requirement
deemed burdensome or otherwise objectionable by National Penn.
(b) The Department of Banking of the Commonwealth of Pennsylvania
shall have approved National Penn's purchase of up to 24.9% of the shares of
common stock of Bank issued and outstanding.
(c) National Penn shall have received a list of all subscribers, as of
the date of this Agreement, for the Bank's common stock in the Initial Offering,
and National Penn shall have approved all stock subscription agreements received
by Bank, after the date of this Agreement, in the Initial Offering, subject to
Bank curing or removing any alleged defect, to the satisfaction of National
Penn, in one or more of the subscription agreements received after the date of
this Agreement or Bank rejecting in total any subscription agreement; National
Penn agrees that its approval of such stock subscription agreements shall not be
unreasonably withheld.
(d) No changes in the material terms and conditions of Bank's
solicitation of offers to purchase shares of common stock of Bank shall have
occurred from the terms and conditions disclosed and set forth in the Offering
Circular and the three Supplements thereto, all of which are attached hereto and
made a part hereof as Exhibit "B," and Bank shall have solicited offers to
purchase no more than 750,000 shares of common stock of Bank in the aggregate.
(e) On the closing date of the Initial Offering, Bank shall have
received a cross-receipt from Xxxx Xxxxx Xxxx Xxxxxx
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Incorporated ("Xxxx Xxxxx") acknowledging receipt from Bank of payment in full
of all amounts due Xxxx Xxxxx pursuant to the provisions of Section 4(c) of the
Agency Agreement, dated as of October 3, 1988, as amended on February 18, 1989,
between Xxxx Xxxxx and the Bank; Xxxx Xxxxx shall not have received or become
legally entitled to any selling or other commission on account of any
subscription to or purchase of Bank's common stock by National Penn or by any
other party whose executed stock subscription agreement, pursuant to the Initial
Offering, has been delivered to Bank by National Penn; and Xxxx Xxxxx shall have
received no stock purchase warrants, options or rights issued by Bank, or become
legally entitled to the same.
(f) Bank shall have received an opinion of its counsel that, to the
best of such counsel's knowledge, after due inquiry (which due inquiry shall
include inquiries of all persons who are directors of Bank or shareholders who
own 5% or more of Bank's common stock outstanding upon conclusion of the Initial
Offering, excluding shares subscribed for by National Penn for this purpose), no
suits, actions or other legal proceedings are pending or threatened against
Bank, including without limitation any relating to the issuance of warrants by
Bank, in connection with the Initial Offering, as set forth herein.
(g) Bank shall have certified in writing to National Penn that (1) at
least $4,000,000 has been paid to the Escrow Agent by subscribers to Bank's
common stock in the Initial Offering, (2) organizational and pre-opening
expenses (exclusive of Xxxx Xxxxx'x selling commissions, non-accountable expense
allowance and financial advisory fee, and general overhead expenses) set forth
on Exhibit "C" do not exceed $275,000 and (3) there is no additional expense to
be incurred after the date hereof in connection with the proposed relocation of
the Bank's
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permanent facilities from Lemoyne, Pennsylvania to Camp Hill, Pennsylvania.
(h) Directors of Bank shall have purchased not less than 150,000
shares of Bank's common stock at an aggregate purchase price of not less than
$1,500,000.
21. Open Market Purchase Limitation. Notwithstanding any other provision
hereof, National Penn shall not purchase any shares of common stock of Bank in
the open market if the effect of such purchase would be to cause National Penn
to own more than 24.9% of the shares of common stock of Bank then issued and
outstanding, without the prior written approval of Bank and of the Board of
Governors of the Federal Reserve System.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective names
by their authorized representatives the day and year first above written.
PENNSYLVANIA STATE BANK
BY /s/ Xxxxxxx X. Xxxxxxx
------------------------------
(SEAL) President
Attest /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Secretary
NATIONAL PENN BANCHARES, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------
Chairman
(SEAL)
Attest: /s/ Xxxxxx X. Xxxxx
-------------------------
Secretary
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EXHIBIT A
1 2 3 4
SHARES TOTAL WARRANTS NPIC DIRECTORS
------ -------------- ---- ---------
(15% of 1) (5% + 7 1/2% greater than 500,000) (2 - 3)
430,000 64,500 21,500 + 0 = 21,500 43,000
500,000 75,000 25,000 + 0 = 25,000 50,000
600,000 90,000 30,000 + 7,500 = 37,500 52,500
650,000 97,500 32,500 + 11,250 = 43,750 53,750
700,000 105,000 35,000 + 15,000 = 50,000 55,000
750,000 1l2,5OO 37,500 + 18,750 = 56,250 56,250
