STANDBY PURCHASE AGREEMENT
Exhibit
10.1
STANDBY PURCHASE
AGREEMENT
This
STANDBY PURCHASE AGREEMENT (this “Agreement”),
dated as of August 17, 2009, is by and between Community Capital
Corporation, a South Carolina corporation (the “Company”),
and Xxxxx Emerging Financial Institution Fund III, LP, a Delaware Limited
Partnership (the “Standby
Purchaser”).
W I T N E S S E T
H:
WHEREAS,
the Company proposes pursuant to the Rights Offering Registration Statement (as
defined herein), to commence an offering to holders of its common stock (the
“Common
Stock”) of record as of the close of business on August 7, 2009 (the
“Record
Date”), of non-transferable rights (the “Rights”)
to subscribe for and purchase additional shares of Common Stock (the “New
Shares”) at a subscription price of $2.75 per share for an
aggregate offering amount of up to $20 million (the “Subscription
Price” and, such offering, the “Rights
Offering”); and
WHEREAS,
pursuant to the Rights Offering, the Company will distribute to each of its
shareholders of record, at no charge, one Right for each share of Common Stock
held by them as of the Record Date, and each Right will entitle the holder to
purchase, for each share of Common Stock owned as of the Record Date, New
Shares at the Subscription Price (the “Basic
Subscription Privilege”); and
WHEREAS,
each holder of Rights who exercises in full its Basic Subscription Privilege
will be entitled to subscribe for additional shares of Common Stock of the
Unsubscribed Shares (as defined herein), subject to availability and allocation,
at the Subscription Price, to the extent that other holders of Rights do not
exercise all of their respective Basic Subscription Privileges (the “Over-Subscription
Privilege”); and
WHEREAS,
in order to facilitate the Rights Offering, the Company has requested the
Standby Purchaser to agree, and the Standby Purchaser has agreed, (a) when
applicable, not to exercise its Over-Subscription Privilege, and (b) that,
to the extent any New Shares are not purchased by the Company’s shareholders
pursuant to the exercise of Rights, the Standby Purchaser shall be deemed to
have exercised such Rights immediately prior to the expiration of the Rights
Offering and shall purchase the Unsubscribed Shares from the Company at the
Subscription Price; and
NOW
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and other good and valuable consideration, the parties
hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Certain
Other Definitions. The following terms used herein shall have the
meanings set forth below:
“Affiliate”
shall mean an affiliate (as defined in Rule 12b-2 under the Exchange Act)
of the Standby Purchaser; provided that the
Standby Purchaser or any of its affiliates exercises investment authority,
including, without limitation, with respect to voting and dispositive rights
with respect to such affiliate.
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“Agreement”
shall have the meaning set forth in the preamble hereof.
“Basic
Subscription Privilege” shall have the meaning set forth in the recitals
hereof.
“Board”
shall mean the Board of Directors of the Company.
“Business
Day” shall mean any day that is not a Saturday, a Sunday or a day on
which banks are generally closed in the State of South Carolina.
“Closing”
shall mean the closing of the purchases described in Section 2 hereof,
which shall be held at 10:00 a.m. on the Closing Date at the offices of Xxxxxx
& Bird LLP, located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
or such other time and place as may be agreed to by the parties
hereto.
“Closing
Date” shall mean the date that is three (3) Business Days after the
Rights Offering Expiration Date, or such other date as may be agreed to by the
parties hereto.
“Commission”
shall mean the United States Securities and Exchange Commission, or any
successor agency thereto.
“Common
Stock” shall have the meaning set forth in the recitals
hereof.
“Company”
shall have the meaning set forth in the preamble hereof.
“Company
Indemnified Persons” shall have the meaning set forth in Section 9(b)
hereof.
“Company SEC
Documents” shall have the meaning set forth in Section 3(g)
hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder.
“Expenses”
shall have the meaning set forth in Section 6(b) hereof.
“Indemnified
Persons” shall have the meaning set forth in Section 9(b)
hereof.
“Market Adverse
Effect” shall have the meaning set forth in Section 7(a)(iii)
hereof.
“Material Adverse
Effect” shall mean a material adverse effect on the financial condition,
or on the earnings, financial position, operations, assets, results of
operations or business of the Company and its banking subsidiary, CapitalBank,
taken as a whole; provided that the meaning shall exclude any changes from
general economic, financial services industry, market or competitive conditions
or changes in laws, rules or regulations generally affecting Persons in the
Company’s industry.
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“New
Shares” shall have the meaning set forth in the recitals
hereof.
“Non-Terminating
Standby Purchaser” shall have the meaning set forth in Section 8(c)
hereof.
“Over-Subscription
Privilege” shall have the meaning set forth in the recitals
hereof.
“Person”
shall mean an individual, corporation, partnership, association, joint stock
company, limited liability company, limited liability corporation, joint
venture, trust, governmental entity, unincorporated organization or other legal
entity.
“Prospectus”
shall mean a prospectus, as defined in Section 2(10) of the Securities Act,
which meets the requirements of Section 10 of the Securities Act and is
current with respect to the Securities covered thereby.
“Record
Date” shall have the meaning set forth in the recitals
hereof.
“Rights”
shall have the meaning set forth in the recitals hereof.
“Rights
Offering” shall have the meaning set forth in the recitals
hereof.
“Rights Offering
Expiration Date” shall mean September 21, 2009, provided that the Company
shall have the option to extend the Rights Offering for any reason.
“Rights Offering
Prospectus” shall mean the final Prospectus, including any prospectus
supplement relating to the Rights and the underlying shares of Common Stock that
is filed with the Commission and deemed by virtue of Rule 430B of the
Securities Act to be part of such registration statement, each as amended, for
use in connection with the issuance of the Rights, together with the documents
incorporated by reference therein pursuant to Item 12 of Form
S-1.
“Rights Offering
Registration Statement” shall mean the Company’s Registration Statement
on Form S-1 (Commission File No. 333-160430), as amended, filed with the
Commission on July 2, 2009, together with all exhibits thereto and any
prospectus supplement relating to the Rights and the underlying shares of Common
Stock that is filed with the Commission and deemed by virtue of Rule 430B
of the Securities Act to be part of such registration statement, each as
amended, pursuant to which the Rights and underlying shares of Common Stock have
been registered pursuant to the Securities Act.
“Securities”
shall mean those of the New Shares and Unsubscribed Shares that are purchased by
the Standby Purchaser pursuant to Section 2 hereof.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
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“Standby
Indemnified Persons” shall have the meaning set forth in Section 9(a)
hereof.
“Standby
Purchaser” shall have the meaning set forth in the preamble
hereof.
“Subscription
Agent” shall have the meaning set forth in Section 6(a)(iv)
hereof.
“Subscription
Price” shall have the meaning set forth in the recitals
hereof.
“Terminating
Standby Purchaser” shall have the meaning set forth in Section 8(c)
hereof.
“Termination
Notice” shall mean a notice from the Company indicating that the Board
has determined to terminate or suspend indefinitely the Rights Offering
contemplated hereby.
“Unsubscribed
Shares” shall have the meaning set forth in Section 2(b)
hereof.
Section
2. Standby
Purchase Commitment.
(a) The
Standby Purchaser hereby agrees to purchase from the Company, and the Company
hereby agrees to sell to the Standby Purchaser, at the Subscription Price, all
of the New Shares that will be available for purchase by the Standby Purchaser
pursuant to its Basic Subscription Privilege, if applicable. The
Standby Purchaser agrees not to exercise, and to cause its Affiliates not to
exercise, the Over-Subscription Privilege to which the Standby Purchaser and its
Affiliates would otherwise be entitled in the Rights Offering, if
applicable.
(b) If
and to the extent New Shares are not purchased by the Company’s other
shareholders (the “Unsubscribed
Shares”) pursuant to the exercise of Rights (including the Basic
Subscription Privilege and the Over-Subscription Privilege) under the Rights
Offering, the Standby Purchaser shall be deemed to have exercised such Rights
immediately prior to the expiration of the Rights Offering and shall be entitled
to and hereby agrees to purchase from the Company, and the Company hereby agrees
to sell to the Standby Purchaser, at the Subscription Price, such Standby
Purchasers pro rata share of all such remaining New Shares. It is
understood and agreed that, if and to the extent that the Standby Purchaser is
required to purchase Unsubscribed Shares pursuant to this Section 2,
then the Standby Purchaser shall purchase such Unsubscribed Shares up to a
maximum investment of $412,500.00; provided, that the Standby
Purchaser and the Company hereby acknowledge and agree that the Company has
entered into, or contemplates entering into, one or more other Standby Purchase
Agreements with certain other parties; provided, further, if the
number of Unsubscribed Shares is less than the aggregate number of Unsubscribed
Shares agreed to be purchased by all Standby Purchasers, the Common Stock
available for issuance to Standby Purchasers shall be allocated as nearly as
possible on a pro rata basis among all Standby Purchasers based upon the maximum
number of Common Stock agreed to be purchased by each such Standby Purchaser,
after giving effect to the limitations set forth herein. In no event
shall the Standby Purchasers be entitled to purchase shares of Common Stock in
excess of the number of shares of Common Stock that would result in any of the
Standby Purchasers becoming beneficial owners (within the meaning of Section
13(d)(3) of the Exchange Act) of 9.9% of the issued and outstanding shares of
Common Stock after giving effect to the Standby Purchasers’ purchase of New
Shares under the Basic Subscription Privilege, Unsubscribed Shares and shares of
Common Stock pursuant to a guaranteed minimum investment provided for in this
Agreement.
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(c) Payment
of the Subscription Price for the Securities shall be made to the Company by
Standby Purchaser, on the Closing Date, against delivery of the Securities to
Standby Purchaser, in United States dollars by means of federal funds checks or
a wire transfer to an account designated by the Company.
Section 3. Representations
and Warranties of the Company. The Company represents and warrants to
Standby Purchaser as follows:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of South Carolina and has all requisite corporate
power and authority to carry on its business as now conducted.
(b) This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes a binding obligation of the Company enforceable against
it in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) As
of the date hereof, the authorized capital of the Company consists of 20,000,000
shares of Common Stock, of which, (A) 4,540,921 shares were issued and
outstanding, and (B) 145,898 shares are reserved for issuance upon exercise
of options and restricted stock awards granted under the Company’s stock and
incentive plans. All of the outstanding shares of Common Stock have been duly
authorized, are validly issued, fully paid and nonassessable and were offered,
sold and issued in compliance with all applicable federal and state securities
laws and without violating any contractual obligation or other preemptive or
similar rights.
(d) The
Rights Offering Registration Statement has been filed with, and declared
effective by, the Commission. On the effective date, the Rights Offering
Registration Statement complied in all material respects with the requirements
of the Securities Act and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. On the Closing Date, the Rights
Offering Registration Statement and the Rights Offering Prospectus, including
the information incorporated by reference therein, will not include 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 therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in or omissions from the Rights Offering Registration Statement or the Rights
Offering Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by the Standby Purchasers for use in the
Rights Offering Registration Statement or in the Rights Offering
Prospectus.
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(e) All
of the Securities and New Shares will have been duly authorized for issuance
prior to the Closing, and, when issued and distributed as set forth in the
Rights Offering Prospectus, will be validly issued, fully paid and
non-assessable; and none of the Securities or New Shares will have been issued
in violation of the preemptive rights of any security holders of the Company
arising as a matter of law or under or pursuant to the Company’s articles of
incorporation, as amended, the Company’s bylaws, as amended and restated, or any
material agreement or instrument to which the Company is a party or by which it
is bound.
(f) The
documents incorporated by reference into the Rights Offering Prospectus pursuant
to Item 12 of Form S-1 under the Securities Act, when they become effective
or at the time they are filed with the Commission, as the case may be, will
comply in all material respects with the applicable provisions of the Exchange
Act.
(g) Since
June 30, 2008, the Company has filed with the Commission all forms, reports,
schedules, statements and other documents required to be filed by it through the
date hereof under the Exchange Act or the Securities Act (all such documents, as
supplemented and amended since the time of filing, collectively, the “Company SEC
Documents”). The Company SEC Documents, including without limitation all
financial statements and schedules included in the Company SEC Documents, at the
time filed (and, in the case of registration statements and proxy statements, on
the dates of effectiveness and the dates of mailing, respectively, and in the
case of any Company SEC Document amended or superseded by a filing prior to the
date of this Agreement, then on the date of such amending or superseding
filing), (i) did not contain any 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 therein, in the light of the circumstances under
which they were made, not misleading, and (ii) complied in all material
respects with the applicable requirements of the Exchange Act and the Securities
Act, as applicable. The audited consolidated financial statements of Company
included in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto, were prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved, and present fairly in all material respects, the
consolidated financial position of the Company and its consolidated subsidiary
as at the dates thereof and the consolidated results of their operations and
cash flows for the periods then ended.
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(h) Since
June 30, 2009, there have not been any events, changes, occurrences or state of
facts that, individually or in the aggregate, have had or would reasonably be
expected to have a Material Adverse Effect, except as disclosed in writing by
the Company to the other parties hereto.
Section 4. Representations
and Warranties of the Standby Purchasers. The Standby Purchaser
represents and warrants to the Company, as follows:
(a) The
Standby Purchaser is acquiring its Securities for its own account, with the
intention of holding the Securities for investment and with no present intention
of participating, directly or indirectly, in a distribution of the Securities;
and the Standby Purchaser will not make any sale, transfer or other disposition
of the Securities for a period of ninety (90) days from the Closing
Date.
(b) The
Standby Purchaser is familiar with the business in which it is engaged, and
based upon its knowledge and experience in financial and business matters, it is
familiar with the investments of the type that it is undertaking to purchase; it
is fully aware of the problems and risks involved in making an investment of
this type; and it is capable of evaluating the merits and risks of this
investment. The Standby Purchaser acknowledges that, prior to
executing this Agreement, it has had the opportunity to ask questions of and
receive answers or obtain additional information from a representative of the
Company concerning the financial and other affairs of the Company.
(c) (i)
If the Standby Purchaser is an individual, he or she has full power and
authority to perform his or her obligations under this Agreement. The
Standby Purchaser is of the full age of majority and is legally competent to
execute this Agreement.
(ii) If the Standby Purchaser is a
corporation, the Standby Purchaser is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to perform its obligations
under this Agreement.
(iii) If the Standby Purchaser is a
trust, the trustee has been duly appointed as trustee of the Standby Purchaser
with full power and authority to act on behalf of the Standby Purchaser and to
perform the obligations of the Standby Purchaser under this
Agreement.
(iv) If the Standby Purchaser is a
partnership or limited liability company, the Standby Purchaser is a partnership
or limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
with full power and authority to perform its obligations under this
Agreement.
(d) This
Agreement has been duly and validly authorized, executed and delivered by the
Standby Purchaser and constitutes a binding obligation of the Standby Purchaser
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The Standby
Purchaser represents and warrants that it is not insolvent and has sufficient
cash funds on hand to purchase the Securities on the terms and conditions
contained in this Agreement and will have such funds on the Closing
Date.
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(e) The
Standby Purchasers are not “affiliates”
(within the meaning of Rule 405 of the Securities Act) of one another, are
not acting in concert and are not members of a “group”
(within the meaning of Section 13(d)(3) of the Exchange Act) and have no
current intention to act in the future in a manner that would make them members
of such a group. The Standby Purchaser agrees and acknowledges that it has not
entered into any contracts, arrangements, understanding or relationships (legal
or otherwise) with any Persons or Person with respect to any securities of the
Company, including but not limited to transfer or voting of 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; and the Standby Purchaser does not own any securities of
the Company which are pledged or otherwise subject to a contingency the
occurrence of which would give another Person voting power or investment power
over such securities.
(f) The
Standby Purchaser acknowledges that it has received or has had full access to
all the information it considers necessary or appropriate for deciding whether
to purchase the Securities and has had an opportunity to ask questions and
receive answers regarding the terms and conditions of the
Securities. The Standby Purchaser has consulted with Standby
Purchaser’s attorney, financial advisor or tax advisor regarding aspects of the
transaction it deems necessary, including the risks thereof.
Section 5. Deliveries
at Closing.
(a) At
the Closing, the Company shall deliver to each of the Standby Purchasers the
following:
(i) A
certificate or certificates representing the number of shares of Common Stock
issued to each of the Standby Purchasers pursuant to Section 2 hereof;
and
(ii) A
certificate of an officer of the Company on its behalf to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct in all material respects on and as of the Closing Date, with
the same effect as if made on the Closing Date.
(b) At
the Closing, each of the Standby Purchasers shall deliver to the Company the
following:
(i) Payment
in an amount equal to the Subscription Price multiplied by the Securities
purchased by the Standby Purchaser, as set forth in Section 2(c) hereof;
and
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(ii) A
certificate of the Standby Purchaser to the effect that the representations and
warranties of the Standby Purchaser contained in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Section 6. Covenants.
(a) Covenants. The
Company agrees as follows between the date hereof and the earlier of the Closing
Date or the effective date of any termination pursuant to Section 8
hereof:
(i) To
use commercially reasonable efforts to effectuate the Rights
Offering;
(ii) As
soon as reasonably practicable after the Company is advised or obtains knowledge
thereof, to advise the Standby Purchasers with a confirmation in writing, of
(A) the time when the Rights Offering Prospectus or any amendment or
supplement thereto has been filed, (B) the issuance by the Commission of
any stop order, or of the initiation or threatening of any proceeding,
suspending the effectiveness of the Rights Offering Registration Statement or
any amendment thereto or any order preventing or suspending the use of any
preliminary prospectus or the Rights Offering Prospectus or any amendment or
supplement thereto, (C) the issuance by any state securities commission of
any notice of any proceedings for the suspension of the qualification of the New
Shares for offering or sale in any jurisdiction or of the initiation, or the
threatening, of any proceeding for such purpose, (D) the receipt of any
comments from the Commission directed toward the Rights Offering Registration
Statement or any document incorporated therein by reference, and (E) any
request by the Commission for any amendment to the Rights Offering Registration
Statement or any amendment or supplement to the Rights Offering Prospectus or
for additional information. The Company will use its commercially reasonable
efforts to prevent the issuance of any such stop order or the imposition of any
such suspension and, if any such order is issued or suspension is imposed, to
obtain the withdrawal thereof as promptly as possible;
(iii) To
operate the Company’s business in the ordinary course of business consistent
with past practice;
(iv) To
notify, or to cause the subscription agent for the Rights Offering (the “Subscription
Agent”) to notify, on each Friday during the exercise period of the
Rights, or more frequently if reasonably requested by any Standby Purchaser, the
Standby Purchasers of the aggregate number of Rights known by the Company or the
Subscription Agent to have been exercised pursuant to the Rights Offering as of
the close of business on the preceding Business Day or the most recent
practicable time before such request, as the case may be;
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(v) Not
to issue any shares of capital stock of the Company, or options, warrants,
purchase rights, subscription rights, conversion rights, exchange rights,
securities convertible into or exchangeable for capital stock of the Company, or
other agreements or rights to purchase or otherwise acquire capital stock of the
Company, except for (A) shares of Common Stock issuable upon exercise of
the Company’s presently outstanding stock options, and (B) awards granted
to employees of the Company after the date hereof under the Company’s incentive
or equity plans (including, but not limited to, 401(k) plans, dividend
reinvestment plans, and individual compensation arrangements);
(vi) Not
to authorize any stock split, stock dividend, stock combination or similar
transaction affecting the number of issued and outstanding shares of Common
Stock;
(vii) Not
to declare or pay any dividends on its Common Stock or repurchase any shares of
Common Stock, other than ordinary quarterly dividends, regularly declared and
paid in accordance with past practice; and
(viii) Not
to incur any indebtedness or guarantees thereof, other than borrowings in the
ordinary course of business and consistent with past practice.
(b) Certain Acquisitions.
Between the date hereof and the Closing Date, none of the Standby Purchasers nor
any of their respective Affiliates shall acquire any shares of Common Stock;
provided, however, that the
foregoing shall not restrict the acquisition of shares of Common Stock by the
Standby Purchasers or any of their respective Affiliates from the Company
pursuant to Section 2 of this Agreement.
(c) Information. The
Standby Purchasers agree to furnish to the Company all information with respect
to the Standby Purchaser that may be necessary or appropriate and will make any
information furnished to the Company for the Rights Offering Prospectus by the
Standby Purchaser not contain any untrue statement of material fact or omit to
state a material fact required to be stated in the Rights Offering Prospectus or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Public Statements.
Neither the Company nor the Standby Purchasers shall issue any public
announcement, statement or other disclosure with respect to this Agreement, the
Rights Offering, or the transactions contemplated hereby and thereby without the
prior consent of the other parties hereto, which consent shall not be
unreasonably withheld or delayed, except (i) if such public announcement,
statement or other disclosure is required by applicable law or applicable stock
market regulations, in which case the disclosing party shall consult in advance
with respect to such disclosure with the other parties to the extent reasonably
practicable, or (ii) the filing of any Schedule 13D or
Schedule 13G, to which a copy of this Agreement may be attached as an
exhibit thereto.
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(e) Regulatory Filing. If the
Company or any Standby Purchaser determines a filing is or may be required under
applicable law in connection with the transactions contemplated hereunder, the
Company and the Standby Purchaser shall use commercially reasonable efforts to
promptly prepare and file all necessary documentation and to effect all
applications that are necessary or advisable under applicable law with respect
to the transactions contemplated hereunder so that any applicable waiting period
shall have expired or been terminated as soon as practicable after the date
hereof.
Section 7. Conditions
to Closing.
(a) The
obligations of each of the Standby Purchasers to consummate the transactions
contemplated hereunder are subject to the fulfillment, prior to or on the
Closing Date, of the following conditions:
(i) The
representations and warranties of the Company in Section 3 shall be true
and correct in all material respects as of the date hereof and at and as of the
Closing Date as if made on such date (except for representations and warranties
made as of a specified date, which shall be true and correct in all material
respects as of such specified date);
(ii) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have been any Material Adverse Effect that is continuing;
and
(iii) As
of the Closing Date, trading in the Common Stock shall not have been suspended
by the Commission or The NASDAQ Global Market or trading in securities generally
on the New York Stock Exchange or The NASDAQ Global Market shall not have
been suspended or limited or minimum prices shall not have been established on
either exchange (a “Market Adverse
Effect”).
(b) The
obligations of the Company to consummate the transactions contemplated hereunder
are subject to the fulfillment, prior to or on the Closing Date, of the
condition that the representations and warranties of each of the Standby
Purchasers in Section 4 shall be true and correct in all material respects
as of the date hereof and at and as of the Closing Date as if made as of such
date (except for representations and warranties made as of a specified date,
which shall be true and correct in all material respects as of such specified
date) and the Standby Purchaser has entered into a lock-up agreement with the
Company in the form attached hereto as Exhibit
A.
(c) The
obligations of the Company and each of the Standby Purchasers to consummate the
transactions contemplated hereunder in connection with the Rights Offering are
subject to the fulfillment, prior to or on the Closing Date, of the following
conditions:
(i) No
judgment, injunction, decree or other legal restraint shall prohibit, or have
the effect of rendering unachievable, the consummation of the Rights Offering or
the material transactions contemplated by this Agreement;
(ii) No
stop order suspending the effectiveness of the Rights Offering Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in the
Registration Statement or otherwise shall have been complied with;
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(iii) The
New Shares and the Securities shall have been authorized for listing on The
NASDAQ Global Market; and
(iv) The
Standby Purchaser and the Company shall be reasonably satisfied that the
purchase and ownership of New Shares and the other transactions contemplated
hereby will not result in the Standby Purchaser being deemed to “control” the
Company within the meaning of the Bank Holding Company Act of 1956 or the Change
in Bank Control Act, provided that the Standby Purchaser provides customary
“non-control” commitments to the Board of Governors of the Federal Reserve
System and any applicable regulatory waiting period shall have expired or been
terminated thereunder with respect to such purchase.
Section 8. Termination.
(a) This
Agreement may be terminated at any time prior to the Closing Date, by all of
the standby purchasers participating in the Rights Offering by written
notice to the other parties hereto if there is (i) a Material Adverse
Effect or (ii) a Market Adverse Effect that is not cured within twenty-one
(21) days after the occurrence thereof.
(b) This
Agreement may be terminated by the Company on one hand or by the Standby
Purchaser on the other hand, by written notice to the other parties
hereto:
(i) At
any time prior to the Closing Date, if there is a material breach of this
Agreement by the other party that is not cured within fifteen (15) days
after the non-breaching party has delivered written notice to the breaching
party of such breach;
(ii) All
requisite approvals are not obtained prior to the Closing in the event any
required federal or state approvals for the transactions contemplated hereby is
not obtained on conditions reasonably satisfactory despite the Company’s or the
Standby Purchaser’s reasonable best efforts to obtain such approval;
or
(iii) At
any time after November 30, 2009, unless the Closing has occurred prior to
such date.
(c) If
any of the standby purchasers participating in the Rights Offering (the
“Terminating
Standby Purchaser”) shall give written notice of its election to
terminate this Agreement pursuant to this Section 8 at any time prior to
the Closing Date, this Agreement shall remain in effect with respect to the
Company and the other standby purchasers participating in the Rights
Offering (the “Non-Terminating
Standby Purchaser”) (a) to the extent the Non-Terminating Standby
Purchasers shall have agreed in writing, within two (2) Business Days of such
Terminating Standby Purchaser’s delivery of such written notice, to assume all
of the obligations of the Terminating Standby Purchaser hereunder, including,
without limitation, the obligation to purchase the Unsubscribed Shares pursuant
to Section 2(b) hereof, but subject to the limitations of Section 2(b) hereof,
or (b) the Company otherwise agrees to complete the Rights
Offering.
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(d) This
Agreement may be terminated upon mutual consent of the parties
hereto.
(e) The
parties hereto agree that any termination of this Agreement pursuant to Section
8, or the termination of the Rights Offering for any reason by the Company
(other than, in either case, termination in the event of a breach of this
Agreement by the Standby Purchaser or misrepresentation of any of the statements
made herein by the Standby Purchaser) shall be without liability of the Company
or the Standby Purchaser.
Section 9. Indemnification
and Contribution.
(a) In
the event the Rights Offering is consummated, the Company shall indemnify and
hold harmless the Standby Purchasers and their respective officers, directors
and employees and each other Person, if any, who controls the Standby Purchaser
within the meaning of the Securities Act (all such Persons being hereinafter
referred to, collectively, as the “Standby
Indemnified Persons”), against any losses, claims, damages or
liabilities, to which any of the Standby Indemnified Persons may become subject
under the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any alleged untrue statement of any material fact
contained, on the effective date thereof, in the Rights Offering Registration
Statement, the Rights Offering Prospectus or in any amendment or supplement
thereto, or any alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each such Standby Indemnified Person for any reasonable legal or any other
expenses reasonably incurred by such Standby Indemnified Person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the
Company shall not be liable in any such case to any Standby Indemnified Person
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any actual or alleged untrue statement or actual or alleged omission
made in the Rights Offering Registration Statement, Rights Offering Prospectus
or in any amendment or supplement thereto or in reliance upon and in conformity
with information furnished to the Company by such Standby Indemnified Person
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Standby
Indemnified Person, and shall survive the transfer of such Securities or New
Shares by such Standby Indemnified Person.
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(b) The
Standby Purchaser by acceptance hereof, severally, and not jointly, agrees to
indemnify and hold harmless the Company, its officers, directors and employees
and each other Person, if any, who controls the Company within the meaning of
the Securities Act (all such Persons being hereinafter referred to,
collectively, as the “Company
Indemnified Persons,” and together with the
Standby Indemnified Persons, the “Indemnified
Persons”) against any losses, claims, damages or liabilities, joint or
several, to which any of the Company Indemnified Persons may become subject
(i) as a result of any breach by the Standby Purchaser of any of its
representations, warranties or covenants contained herein or in any certificate
delivered hereunder or (ii) under the Securities Act or any other statute or at
common law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of, or are based upon, information provided in
writing to the Company by the Standby Purchaser specifically for use in the
Rights Offering Registration Statement or Rights Offering Prospectus or any
amendment or supplement thereto.
(c) Any
Person entitled to indemnification hereunder will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the
failure to give such notice shall not limit the rights of such Person, except to
the extent the indemnifying party is actually prejudiced thereby) and
(ii) unless, in such indemnified party’s reasonable judgment, a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless
(A) the indemnifying party has agreed to pay such fees or expenses or
(B) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person. If such defense
is not assumed by the indemnifying party as permitted hereunder, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its prior written consent (but such consent
will not be unreasonably withheld or delayed). If such defense is assumed by the
indemnifying party pursuant to the provisions hereof, such indemnifying party
shall not settle or otherwise compromise the applicable claim unless
(i) such settlement or compromise contains a full and unconditional release
of the indemnified party or (ii) the indemnified party otherwise consents
in advance in writing, which consent shall not be unreasonably withheld or
delayed. An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified
party, a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
disbursements of such additional counsel or counsels.
-14-
(d) If
the indemnification provided for in this Section 9 is unavailable to an
Indemnified Person hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such Indemnified Person, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and Indemnified Person in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and Indemnified Persons shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, the indemnifying party or the Indemnified Persons, and
their relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or
proceeding.
Section 10. Survival.
The representations and warranties of the Company and each of the Standby
Purchasers contained in this Agreement or in any certificate delivered hereunder
shall not survive the Closing hereunder.
Section 11. Notices.
All notices, communications and deliveries required or permitted by this
Agreement shall be made in writing signed by the party making the same, shall
specify the Section of this Agreement pursuant to which it is given or being
made and shall be deemed given or made (a) on the date delivered if
delivered by telecopy or in person, (b) on the third (3rd) Business Day
after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) or (c) on the day after it
is delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
(i) if
to Standby Purchaser, at:
Xxxxx X. Xxxxx & Co.
Attn: Xxxxxxxx X. Xxxxxx,
Xx.
50 North Xxxxx Street, Ste.
3625
Xxxxxxxxxxxx, XX 00000
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(ii)
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if
to the Company, at:
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Community
Capital Corporation
Attn: Xxxxx
X. Xxxxxx
Chief
Financial Officer
0000X
Xxxxxxx 00 Xxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
or to
such other representative or at such other address of a party as such party
hereto may furnish to the other parties in writing in accordance with this
Section 11.
Section 12. Binding
Effect. This Agreement will be binding upon, and will inure solely to the
benefit of and be enforceable by, the parties hereto and their respective
successors and permitted, and no other Person shall acquire or have any right
under or by virtue of this Agreement. The Standby Purchaser may not
assign any of its rights or obligations hereunder to any other Person or entity
without the prior written consent of the Company.
-15-
Section 13. Entire
Agreement. This Agreement embodies the entire agreement and understanding
between the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties, or undertakings, other than
those set forth or referred to herein, with respect to the standby purchase
commitments with respect to the Securities and the New Shares. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter of this Agreement.
Section 14. Governing
Law. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of South Carolina (other than its rules of
conflict of laws to the extent the application of the laws of another
jurisdiction would be required thereby).
Section 15. Severability.
If any provision of this Agreement or the application thereof to any person or
circumstances 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, void or unenforceable, shall 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 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.
Section 16. Extension
or Modification of Rights Offering. The Company may (a) waive
irregularities in the manner of exercise of the Rights, and (b) waive
conditions relating to the method (but not the timing) of the exercise of the
Rights to the extent that such waiver does not materially adversely affect the
interests of the Standby Purchasers.
Section 17. Miscellaneous.
(a) The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning of this Agreement.
(b) This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which, when taken together, shall
constitute one and the same instrument.
[Remainder of
this page intentionally left blank.]
-16-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the date first above written.
COMPANY:
COMMUNITY
CAPITAL CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: President
and Chief Executive Officer
STANDBY
PURCHASER:
XXXXX
EMERGING FINANCIAL INSTITUTION FUND III, LP
By: /s/ Xxxxxxxx X. Xxxxxx,
Xx.
Name: Xxxxxxxx
X. Xxxxxx, Xx.
For the
General Partner, Xxxxx Emerging Financial Institution Fund GP, LLC
EXHIBIT
A
LOCK-UP
AGREEMENT
August
17, 2009
Community
Capital Corporation
Ladies
and Gentlemen:
In
connection with your anticipated issuance to the holders of your issued and
outstanding Common Stock (“Common Stock”),
certain non-transferable rights (the “Rights”) to subscribe
for and purchase additional shares of Common Stock (such transaction generally
being herein referred to as the “Rights Offering”) and
sale to us of any unsubscribed-for Common Stock (the “Standby Shares”)
pursuant to the Standby Purchase Agreement, dated as of August 17, 2009, (the
“Standby Purchase
Agreement”), we agree that any transaction in your Common Stock by us
will be subject to this agreement (the “Agreement”).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings set forth in the Standby Purchase Agreement.
In
connection with the sale and purchase of the Standby Shares, and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the undersigned agrees as follows:
Except as
set forth below, it will not, directly or indirectly, without the prior written
consent of the Company, offer, sell, contract to sell, pledge, make any short
sale or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition of, whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise, by the undersigned, any affiliate of the undersigned or any person in
privity with the undersigned) or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, the Standby Shares. The foregoing restriction is expressly
agreed to preclude the undersigned from engaging in any hedging or other
transaction which is designed to or which reasonably could be expected to lead
to or result in a sale or disposition of the undersigned’s Standby Shares even
if such Standby Shares would be disposed of by someone other than the
undersigned. The provisions in this paragraph shall not restrict the transfer of
Standby Shares to an affiliate as long as the affiliate transferee agrees for
the benefit of the Company to be bound by the terms hereof.
Its
obligations under the paragraph above shall terminate upon termination of the
Standby Purchase Agreement and, with respect the Standby Shares, 90 days after
the Closing Date. In no event will this lock-up agreement be any more
restrictive than any other lock-up or similar agreement agreed to in connection
with Rights Offering and the undersigned and the Company agree to make any
necessary amendments hereto promptly upon execution of any more favorable
agreement.
Notwithstanding
the foregoing, the undersigned may terminate this Agreement and its obligations
hereunder at any time, effective upon the undersigned’s giving you written
notice of termination, in the event any bank regulatory authority, including the
Board of Governors of the Federal Reserve System, the South Carolina Office of
the of the Commissioner of Banking or any of the staffs thereof, (i) initiates,
or notifies the undersigned in writing that it intends to initiate, any
proceeding to determine whether we “control” the Company within the meaning of
the Bank Holding Company Act, or any other federal or state banking laws or (ii)
otherwise notifies us in writing or publicly discloses that such regulatory
authority believes that we may control or have the ability to exert a
controlling influence over the Company within the meaning of such
laws.
You
hereby agree that you may release us from this Agreement with your prior written
consent at any time.
XXXXX
EMERGING FINANCIAL INSTITUTION FUND III, LP
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|
By:
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Xxxxx
Emerging Financial Institution Fund GP, LLC, its General
Partner
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By:
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/s/ Xxxxxxxx X.
Xxxxxx, Xx.
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Xxxxxxxx
X. Xxxxxx, Xx.
