Letter Agreement UNITED STATES DEPARTMENT OF THE TREASURY
Exhibit
10.1
UNITED STATES DEPARTMENT OF THE TREASURY
0000
XXXXXXXXXXXX XXXXXX, XX
XXXXXXXXXX,
X.X. 00000
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UST
Sequence Number: 152
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Dear
Ladies and Gentlemen:
The
company set forth on the signature page hereto (the “Company”) intends to issue in
a private placement the number of shares of a series of its preferred stock set
forth on Schedule A hereto (the “Preferred Shares”) and a
warrant to purchase the number of shares of its common stock set forth on
Schedule A hereto (the “Warrant” and, together with
the Preferred Shares, the “Purchased Securities”) and
the United States Department of the Treasury (the “Investor”) intends to
purchase from the Company the Purchased Securities.
The
purpose of this letter agreement is to confirm the terms and conditions of the
purchase by the Investor of the Purchased Securities. Except to the
extent supplemented or superseded by the terms set forth herein or in the
Schedules hereto, the provisions contained in the Securities Purchase Agreement
– Standard Terms attached hereto as Exhibit A (the “Securities Purchase
Agreement”) are incorporated by reference herein. Terms that
are defined in the Securities Purchase Agreement are used in this letter
agreement as so defined. In the event of any inconsistency between
this letter agreement and the Securities Purchase Agreement, the terms of this
letter agreement shall govern.
Each of
the Company and the Investor hereby confirms its agreement with the other party
with respect to the issuance by the Company of the Purchased Securities and the
purchase by the Investor of the Purchased Securities pursuant to this letter
agreement and the Securities Purchase Agreement on the terms specified on
Schedule A hereto.
This
letter agreement (including the Schedules hereto) and the Securities Purchase
Agreement (including the Annexes thereto) and the Warrant constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject matter hereof. This letter agreement
constitutes the “Letter Agreement” referred to in the Securities Purchase
Agreement.
This
letter agreement may be executed in any number of separate counterparts, each
such counterpart being deemed to be an original instrument, and all such
counterparts will together constitute the same agreement. Executed
signature pages to this letter agreement may be delivered by facsimile and such
facsimiles will be deemed as sufficient as if actual signature pages had been
delivered.
* *
*
In
witness whereof, this letter agreement has been duly executed and delivered by
the duly authorized representatives of the parties hereto as of the date written
below.
| UNITED
STATES DEPARTMENT OF THE SECRETARY
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By:
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/s/ Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Interim
Assistant Secretary for Financial Stability
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| TIB
FINANCIAL CORP.
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By:
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/s/ Xxxxxx
X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Chairman
and Chief Executive Officer
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Date:
December 5,
2008
EXHIBIT
A
SECURITIES PURCHASE
AGREEMENT
Exhibit
10.4 incorporated by reference
SCHEDULE
A
ADDITIONAL TERMS AND
CONDITIONS
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UST
Sequence Number: 152
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Company
Information:
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Name of
the Company: TIB Financial Corp.
Corporate
or other organizational form: Corporate
Jurisdiction
of Organization: Florida
Appropriate
Federal Banking Agency: Federal Reserve Bank of Atlanta
Notice
Information: Xxxxxxx
X.
Xxxxxxxx Xxxx
X. “Xxxx” Xxxxxxx, Esquire
EVP & Chief Financial
Officer Xxxxx
Xxxxxxxxx, P.A.
TIB Financial
Corp. 000
X. Xxxxxx Xxx.
000 Xxxxx Xxxxxx X., Xxxxx
000 Xxxxx
000
Xxxxxx,
Xxxxxxx 00000 Xxxxxxx,
Xxxxxxx 00000
Telephone: (000)
000-0000 Telephone: (000)
000-0000
Facsimile: (000)
000-0000 Facsimile: (000)
000-0000
Terms of
Purchase:
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Series
of Preferred Stock Purchased:
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Fixed
Rate Cumulative Perpetual Preferred Stock, Series
A
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Per Share
Liquidation Preference of Preferred
Stock: One
thousand dollars ($1,000.00)
Number of
Shares of Preferred Stock Purchased: 37,000
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Dividend
Payment Dates on the Preferred Stock: February 15, May 15,
August 15, and November 15
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Number of
Initial Warrant Shares: 1,063,218
Exercise
Price of the Warrant: $5.22 per share
Purchase
Price: $37,000,000.00
Closing:
Location
of Closing:
Time of
Closing:
Date of
Closing:
Wire
Information for
Closing: ABA
Number:
Bank: TIB
Bank
Account Name: TIB
Financial Corp.
Account Number:
Beneficiary: TIB
Financial Corp.
SCHEDULE
B
CAPITALIZATION
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UST
Sequence Number: 152
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Capitalization
Date: November 30, 2008
Common
Stock
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Par
value:
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$0.10
per share
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Total
Authorized:
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40,000,000
shares
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Outstanding: 14,314,756
shares
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Subject
to warrants, options, convertible
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securities,
etc.: 1,897,160
shares
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Reserved
for benefit plans and other
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issuances: 307,371
shares
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Remaining
authorized but unissued: 23,410,123 shares * Remaining shares
have been reduced by 70,590 shares that are held in treasury shares and
are considered issued but not
outstanding.
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Shares
issued after Capitalization Date
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(other
than pursuant to warrants, options,
convertible
securities, etc. as set forth
above): None
Preferred
Stock
Par
value: No par value
Total
Authorized: 5,000,000 shares
Outstanding
(by series): None
Reserved
for issuance: None
Remaining
authorized but unissued: 5,000,000 shares
SCHEDULE
C
UST Seq.
Number 152
REQUIRED STOCKHOLDER
APPROVALS
Required1 % Vote
Required
Warrants -- Common Stock
Issuance
Charter
Amendment
Stock
Exchange Rules
[Missing Graphic Reference]
If no stockholder approvals are
required, please so indicate by checking the box:
X
If
stockholder approval is required, indicate applicable class/series of capital
stock that are required to vote.
SCHEDULE
D
UST Seq.
Number 152
LITIGATION
List any
exceptions to the representation and warranty in Section 2.2(l) of the
Securities Purchase Agreement – Standard Terms.
[Missing Graphic Reference]
If none, please so indicate by checking
the box: X .
SCHEDULE
E
UST Seq.
Number 152
COMPLIANCE WITH
LAWS
List any
exceptions to the representation and warranty in the second sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.
[Missing Graphic Reference]
If none, please so indicate by checking
the box: X
List any
exceptions to the representation and warranty in the last sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.
[Missing Graphic Reference]
If none, please so indicate by checking
the box: .X
SCHEDULE
F
UST Seq.
Number 152
REGULATORY AGREEMENTS
List any
exceptions to the representation and warranty in Section 2.2(s) of the
Securities Purchase Agreement – Standard Terms.
[Missing Graphic Reference]
If none,
please so indicate by checking the box: .X
