CAPITAL SECURITIES PURCHASE AGREEMENT June 26, 2006
June
26,
2006
THIS
CAPITAL SECURITIES PURCHASE AGREEMENT (this "Purchase Agreement") is made among
PEBK Capital Trust II, a statutory trust created under the laws of the State
of
Delaware (the "Trust"), Peoples Bancorp of North Carolina, Inc. (the "Company"
and, collectively with the Trust, the "Offerors") and Bear, Xxxxxxx Securities
Corp. (the "Purchaser").
RECITALS:
A. The
Trust
desires to issue $20,000,000 of its TP Securities (the "Capital Securities"),
with a liquidation amount of $1,000 per Capital Security, representing undivided
beneficial interests in the assets of the Trust (the "Offering"), to be issued
pursuant to an Amended and Restated Declaration of Trust (the "Declaration"),
by
the Company, as Sponsor, LaSalle Bank National Association, as Institutional
Trustee, and Christiana Bank & Trust Company, as Delaware Trustee, the
Administrators named therein, and the holders, from time to time, of the Capital
Securities, which Capital Securities are to be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
to the extent provided in and pursuant to the terms of a Guarantee Agreement
between the Company and LaSalle Bank National Association, as Guarantee Trustee
(the "Guarantee"); and
B. The
proceeds from the sale of the Capital Securities will be combined with the
proceeds from the sale of the Common Securities by the Trust to the Company
and
will be used by the Trust to purchase an equivalent aggregate principal amount
of Junior Subordinated Debt Securities due September 15, 2036 of the Company
(the "Debentures"), to be issued by the Company pursuant to an Indenture to
be
executed by the Company, as Issuer, and LaSalle Bank National Association,
as
Debenture 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
1
PURCHASE
AND SALE OF CAPITAL SECURITIES
1.1 Upon
the
execution of this Purchase Agreement, the Purchaser hereby agrees to purchase
from the Trust 20,000 Capital Securities at a price equal to $1,000 per Capital
Security (the "Purchase Price") and the Trust agrees to sell such number of
Capital Securities with a liquidation amount of $1,000 per Capital Security
to
the Purchaser for the Purchase Price. The rights and preferences of the Capital
Securities will be set forth in the Declaration in form and substance reasonably
acceptable to the Purchaser. The Purchase Price is payable by the Purchaser
on
the Closing Date in immediately available funds to the account designated by
LaSalle Bank National Association.
1.2 The
certificate for the Capital Securities shall be delivered in definitive form
by
the Trust on the Closing Date (as defined in the Declaration) to the Purchaser
or its designee, and
shall
be
registered in the name of the Purchaser and shall represent the aggregate
liquidation amount of the Capital Securities being purchased by the
Purchaser.
1.3 The
Purchaser acknowledges and the Offerors agree that they will not register any
transfer of the Capital Securities not made in accordance with Regulation S,
pursuant to registration under the Securities Act of 1933, as amended (the
"Securities Act"), or pursuant to an available exemption from
registration.
1.4 The
Placement Agreement, dated June 26, 2006 (the "Placement Agreement"), among
the
Offerors and the Placement Agent identified therein includes certain
representations and warranties, covenants and conditions to closing and certain
other matters governing the issuance and sale of the Capital Securities by
the
Trust to the Purchaser. Each of the provisions of the Placement Agreement,
including the definitions therein, are hereby incorporated by reference into
this Purchase Agreement. In addition, to the extent provided for in the
Placement Agreement, the Purchaser shall be entitled to the benefits of the
Placement Agreement and shall be entitled to enforce such obligations of the
Offerors under the Placement Agreement as fully as if the Purchaser were a
party
to such Placement Agreement, it being agreed between the parties that any and
all representations made by the Offerors to the Placement Agent in the Placement
Agreement shall be deemed to have also been made to the Purchaser.
1.5 If
any
condition specified herein or in the Placement Agreement shall not have been
fulfilled when and as required to be fulfilled by, on behalf of or in respect
of
the Offerors or the Capital Securities, this Purchase Agreement may be
terminated by the Purchaser by notice to the Offerors at any time at or prior
to
the Closing Date, and such termination shall be without liability of any party
to any other party except that Sections 3, 9, 10 and 15 of the Placement
Agreement shall survive any such termination and remain in full force and
effect.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
2.1 The
Purchaser understands and acknowledges that none of the Capital Securities,
the
Debentures or the Guarantee have been registered under the Securities Act,
or
any other applicable securities laws, and are being offered for sale by the
Trust in a transaction not requiring registration under the Securities Act,
and
the Capital Securities 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 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 Rules 144A and 902
under the Securities Act or any other exemption from registration available
under the Securities Act, and the Purchaser agrees to the legends and transfer
restrictions applicable to the Capital Securities
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2.3 The
Purchaser has full power and authority to execute and deliver this Purchase
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 the Capital Securities and perform its obligations pursuant
to
this Purchase Agreement.
2.4 The
Purchaser believes it has received all the information it considers necessary
or
appropriate for deciding whether to purchase the Capital Securities. The
Purchaser further represents that it has had an opportunity to ask questions
and
receive answers from the Offerors regarding the terms and conditions of the
offering of the Capital Securities and the business, properties, prospects
and
financial condition of the Offerors.
2.5 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 Purchase Agreement or to consummate the transactions
contemplated herein.
2.6 This
Purchase Agreement has been duly authorized, executed and delivered by the
Purchaser.
2.7 The
Purchaser is not in violation of or default under any term of its Memorandum
of
Association or Articles of Association, of any provision of any mortgage,
indenture, contract, agreement, instrument or contract to which it is a party
or
by which it is bound or of any judgment, decree, order, writ or, any statute,
rule or regulation applicable to the Purchaser which would prevent the Purchaser
from performing any material obligation set forth in this Purchase Agreement.
The execution, delivery and performance of and compliance with this Purchase
Agreement, and the consummation of the transactions contemplated herein, will
not, with or without the passage of time or giving of notice, result in any
such
material violation, or be in conflict with or constitute a default under any
such term, or the suspension, revocation, impairment, forfeiture or non-renewal
of any permit, license, authorization or approval applicable to the Purchaser,
its business or operations or any of its assets or properties which would
prevent the Purchaser from performing any material obligations set forth in
this
Purchase Agreement.
2.8 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.
2.9 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.
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ARTICLE
3
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:
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To
the Offerors:
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Peoples
Bancorp of North Carolina, Inc.
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000
Xxxx X Xxxxxx
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Xxxxxx,
Xxxxx Xxxxxxxx 00000
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Attention:
A. Xxxxxx Xxxxxxx
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Telephone:
(000) 000-0000
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Fax:
(000) 000-0000
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To
the Purchaser:
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Bear,
Xxxxxxx Securities Corp.
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c/o
Bear Xxxxxxx & Co. Inc.
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Asset Backed Securities
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Telephone:
(000) 000-0000
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Fax:
(000) 000-0000
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Unless
otherwise expressly provided herein, notices shall be deemed to have been given
when received.
3.2 This
Purchase Agreement shall not be changed, modified or amended except by a writing
signed by the parties to be charged.
3.3 Upon
the
execution and delivery of this Purchase Agreement by the parties hereto, this
Purchase Agreement shall become a binding obligation of each such party with
respect to the matters covered herein, including those incorporated by reference
from the Placement Agreement.
3.4 NOTWITHSTANDING
THE PLACE WHERE THIS PURCHASE 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. EACH OF THE TRUST, PURCHASER AND THE COMPANY, ON BEHALF OF ITSELF
AND
ITS SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE TRUST), HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS
LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING RELATED TO THIS PURCHASE AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED
HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
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JURISDICTION
AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE TRUST,
PURCHASER AND THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES (INCLUDING,
WITHOUT LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
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 Purchase
Agreement.
3.6 This
Purchase 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 This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions, express or implied,
oral or written, except as herein contained. No course of conduct or dealing
shall be construed to modify, amend or otherwise affect any of the provisions
hereof.
Signatures
appear on the following pages
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IN
WITNESS WHEREOF, this Purchase Agreement is agreed to and accepted as of
the day
and year first written above.
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Peoples
Bancorp of North Carolina, Inc.
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By:
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/s/
A. Xxxxxx Xxxxxxx
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Name:
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A.
Xxxxxx Xxxxxxx
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Title:
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Executive
Vice President, Chief Financial
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Officer
and Corporate Treasurer
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PEBK
Capital Trust II
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By
Peoples Bancorp of North Carolina, Inc., as
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Sponsor
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By:
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/s/
A. Xxxxxx Xxxxxxx
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Name:
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A.
Xxxxxx Xxxxxxx
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Title:
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Administrator
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IN
WITNESS WHEREOF, this Purchase Agreement is agreed to and accepted as of
the day
and year first written above.
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Bear,
Xxxxxxx Securities Corp.
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By:
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/s/
Xxxx Xxxxx
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Print
Name:
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Xxxx
Xxxxx
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Title:
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Managing
Director
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