SUBSCRIPTION AGREEMENT
EXHIBIT
99.1
Capitol Bancorp Center
000 X.
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Ladies
and Gentlemen:
The
undersigned (Investor)
hereby confirms its agreement with you as follows:
1. This
Subscription Agreement, including the Terms and Conditions for Purchase of Trust
Preferred Securities (Trust Preferred
Securities) issued by Capitol Trust XII, a Delaware statutory trust
(Trust) and
warrants attached hereto as Annex I (Agreement)
is made as of the date set forth below between Capitol Bancorp Ltd., a Michigan
corporation together with any of the Company’s affiliates that may elect to sell
the Investor the Trust Preferred Securities (Company),
and the Investor.
2. The
Company and its affiliates have authorized the sale and issuance to certain
investors of up to an aggregate of 2,000,000 Trust Preferred Securities of the
Trust for a price per share of the Trust Preferred Security at $10.00
per share (Purchase
Price) together with a warrant (Warrants)
to purchase one share of the Company’s common stock, no par value per share
(Common
Stock) at $10.00 per share for each share of the Trust Preferred
Securities purchased by the Investor, in substantially the form attached hereto
as Exhibit B. The Shares and Warrants are immediately separable
and will be issued separately. The shares of Common Stock issuable upon exercise
of the Warrants are referred to herein as the “Warrant
Shares” and, together with the Trust Preferred Securities and the
Warrants, are referred to herein as the “Securities”.
3. The
resale of the Trust Preferred Securities and the offering and sale of the
Warrants (Offering)
are being made pursuant to (1) effective Registration Statements on Form S-3
(File Nos. 333-151111 and 333-153121) (including the Prospectuses contained
therein (Base
Prospectuses), (collectively, Registration
Statements) filed by the Company and the Trust with the Securities and
Exchange Commission (Commission),
and (2) a Prospectus Supplement (Prospectus
Supplement and together with the Base Prospectuses, the
Prospectus) containing certain supplemental information regarding the
Securities, the terms of the Offering and information that may be material to
the Company and its securities that will be filed with the Commission and
delivered to the Investor (or made available to the Investor by the
filing of the Company of an electronic version thereof with the
Commission).
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Trust Preferred
Securities and the Warrants (to the extent applicable) set forth below for the
aggregate purchase price set forth below. The Trust Preferred Securities and the
Warrants shall be purchased pursuant to the Terms and Conditions for Purchase of
Trust Preferred Securities and Warrants attached hereto as Annex I and
incorporated herein by this reference as if fully set forth herein. The Investor
acknowledges that the Offering is not being underwritten by any placement agents
and that there is no minimum offering amount.
5. The
manner of settlement of the Trust Preferred Securities purchased by the Investor
will be by crediting the account of the Investor’s prime broker (as specified by
such Investor on Exhibit A annexed hereto) with the Depository Trust Company
(DTC)
through its Deposit/Withdrawal At Custodian (DWAC)
system, whereby Investor’s prime broker shall initiate a DWAC transaction on the
Closing Date using its DTC participant identification number, and released
by BNY Mellon Shareowner Services, the Company’s transfer agent (Transfer
Agent), at the Company’s direction. NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND
THE COMPANY, THE INVESTOR SHALL:
(I) DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR
1
ACCOUNTS
TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE
TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES,
AND
(II) REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR
THE TRUST PREFERRED
SECURITIES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
Capitol
National Bank, N.A.
ABA #
Account
Name:
Capitol Bancorp
Ltd.
Account
Number:
Attention:
Tel:
(517)
6. The
executed Warrant issuable in connection with the Trust Preferred Securities
purchased by the Investor shall be delivered in accordance with the terms
thereof.
7. The
Investor represents that, except as set forth below, (a) it has had no
position, office or other material relationship within the past three years with
the Company or persons known to it to be affiliates of the Company, (b) it
is not a FINRA member or an Associated Person (as such term is defined under the
FINRA Membership and Registration Rules Section 1011) as of the date of
this Agreement, and (c) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which the Investor is
a part in connection with the Offering, acquired, or obtained the right to
acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(If no exceptions, write “none.” If
left blank, response will be deemed to be “none.”)
8. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectuses, which is a part of the Company’s Registration
Statements and the documents incorporated by reference therein (Disclosure
Package), which includes pricing and other information regarding the
Offering (Offering
Information), prior to or in connection with the receipt of this
Agreement.
9. No offer
by the Investor to buy the Securities will be accepted and no part of the
Purchase Price will be delivered to the Company until the Investor has received
the Disclosure Package including the Offering Information and the Company has
accepted such offer by countersigning a copy of this Agreement, and any such
offer may be withdrawn or revoked, without obligation or commitment of any kind,
at any time prior to the Company (or a placement agent on behalf of the Company)
sending (orally, in writing or by electronic mail) notice of its acceptance of
such offer. An indication of interest will involve no obligation or commitment
of any kind until the Investor has been delivered the Disclosure Package
including the Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
Number
of Trust Preferred Securities:
Purchase Price Per Share of the Trust
Preferred Securities: $10.00
Aggregate Purchase Price: $
2
Please confirm that the foregoing
correctly sets forth the agreement between us by signing in the space provided
below for that purpose.
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THE
INVESTOR:
By:
Name:
Title:
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Date:
By:
Name:
Title:
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ADDRESS:
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Xxxxxx
Xxxxxxx xx X.X. Xxx
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Xxxx Xxxxx Zip
Code
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Agreed
and Accepted
this
[ ]
day of
, 2009:
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THE
COMPANY:
By:
Name:
Title:
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3
ANNEX I
TERMS
AND CONDITIONS FOR PURCHASE OF
TRUST
PREFERRED SECURITIES AND WARRANTS
1. Authorization
and Sale of the Trust Preferred Securities. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of the
Securities.
2. Agreement
to Sell and Purchase the Securities.
(a) At the
Closing (as defined below), the Company will sell to the Investor, and the
Investor will purchase from the Company, upon the terms and conditions set forth
herein, the number of the Trust Preferred Securities set forth on the last page
of the Agreement to which these Terms and Conditions for Purchase of Trust
Preferred Securities and Warrants are attached as Annex I (Signature
Page) for the aggregate purchase price therefor set forth on the
Signature Page.
(b) The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (Other
Investors) and expects to complete sales of the Securities to them. The
Investor and the Other Investors are hereinafter sometimes collectively referred
to as the “Investors,”
and this Agreement and the Subscription Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the “Agreements.”
3. Closings
and Delivery of the Securities and Funds.
(a) Closing. The completion of the
purchase and sale of the Trust Preferred Securities and the Warrants (Closing)
shall occur at a place and time (Closing
Date) to be specified by the Company. At the Closing, (a) the
Company shall cause the Transfer Agent to deliver to the Investor the number of
the Trust Preferred Securities set forth on the Signature Page registered in the
name of the Investor or, if so indicated on the Investor Questionnaire attached
hereto as Exhibit A, in the name of a nominee designated by the Investor,
(b) the Company shall cause to be delivered to the Investor a Warrant to
purchase a number of whole Warrant Shares equal to the number of shares of
the Trust Preferred Securities set forth on the signature page,
and (c) the aggregate purchase price for the Trust Preferred
Securities being purchased by the Investor will be delivered by or on behalf of
the Investor to the Company.
(b) Conditions to the Company’s
Obligations. (a) The Company’s obligation to issue and sell the
Securities to the Investor shall be subject to: (i) the receipt by the
Company of the purchase price for the Trust Preferred Securities being purchased
hereunder as set forth on the Signature Page and (ii) the accuracy of the
representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing
Date.
(c) Conditions to the Investor’s
Obligations. The Investor’s obligation to purchase the Trust Preferred
Securities will be subject to the fulfillment of those undertakings of the
Company to be fulfilled prior to the Closing Date.
(d) Delivery of
Funds. No later than one business day after the execution
of this Agreement by the Investor and the Company, the Investor shall remit by
wire transfer the amount of funds equal to the aggregate purchase price for the
Trust Preferred Securities being purchased by the Investor to the following
account designated by the Company:
Capitol
National Bank, N.A.
ABA #
Account
Name:
Capitol Bancorp
Ltd.
Account
Number:
Attention:
Tel:
(517)
ANNEX I
- 1
(e) Delivery of
Shares. No later than one business day after the
execution of this Agreement by the Investor and the Company, the Investor shall
direct the broker-dealer at which the account or accounts to be credited with
the Shares being purchased by such Investor are maintained, which broker/dealer
shall be a DTC participant, to set up a DWAC instructing the Transfer Agent to
credit such account or accounts with the Shares. Such DWAC instruction shall
indicate the settlement date for the deposit of the Trust Preferred Securities.
Simultaneously with the delivery to the Company by the Investor of the funds
pursuant to Section 3(d) above, the Company shall direct the Transfer Agent
to credit the Investor’s account or accounts with the Trust Preferred Securities
pursuant to the information contained in the DWAC.
4. Representations,
Warranties and Covenants of the Investor. The Investor acknowledges,
represents and warrants to, and agrees with, the Company that:
(a) The
Investor (i) is knowledgeable, sophisticated and experienced in making, and
is qualified to make decisions with respect to, investments in securities
presenting an investment decision like that involved in the purchase of the
Trust Preferred Securities, including investments in securities issued by the
Company and investments in comparable companies, (ii) has answered all
questions on the Signature Page and the Investor Questionnaire and the answers
thereto are true and correct as of the date hereof and will be true and correct
as of the Closing Date and (iii) in connection with its decision to
purchase the number of Trust Preferred Securities set forth on the Signature
Page, has received and is relying only upon the Disclosure Package (including
the documents incorporated by reference therein).
(b) (i) No
action has been or will be taken in any jurisdiction outside the United States
by the Company that would permit an offering of the Trust Preferred Securities,
or possession or distribution of offering materials in connection with the issue
of the Securities in any jurisdiction outside the United States where action for
that purpose is required and (ii) if the Investor is outside the United
States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Securities or has
in its possession or distributes any offering material, in all cases at its own
expense.
(c) (i) The
Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (ii) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
(d) The
Investor understands that nothing in this Agreement, the Prospectus, the
Disclosure Package or any other materials presented to the Investor in
connection with the purchase and sale of the Trust Preferred Securities
constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its purchase of Trust
Preferred Securities. The Investor also understands that there is no established
public trading market for the Warrants being offered in the Offering, and that
the Company does not expect such a market to develop. In addition,
the Company does not intend to apply for listing the Warrants on any securities
exchange. Without an active market, the liquidity of the Warrants
will be limited.
(e) Since the
date on which the Company or its affiliates first contacted such Investor about
the Offering, the Investor has not engaged in any transactions in the securities
of the Company (including, without limitation, any short sales involving the
Company’s securities), and has not violated its obligations of
confidentiality. Each Investor agrees that it will not use any of the
Securities acquired pursuant to this Agreement to cover any short position in
the Common Stock if doing so would be in violation of applicable securities
laws. For purposes hereof, “Short Sales” include, without limitation, all “short
sales” as defined in Rule 200 promulgated under Regulation SHO under the
Exchange Act, whether or not against the box, and all types of direct and
indirect stock pledges, forward sales contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined
ANNEX I
- 2
5. Notices.
All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, or by facsimile or (b) if delivered from
outside the United States, by International Federal Express or facsimile, and
will be deemed given (i) if delivered by first-class registered or
certified mail domestic, three business days after so mailed, (ii) if
delivered by nationally recognized overnight carrier, one business day after so
mailed, (iii) if delivered by International Federal Express, two business
days after so mailed and (iv) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as
follows:
(a) if to the
Company, to:
Capitol Bancorp Center
000 X. Xxxxxxxxxx Xxxxxx, Xxxxxx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Facsimile:
517.374.2576
with copies to (which shall
not constitute notice):
Xxxxxxxx
Xxxxxx Xxxxxxxx and Xxxx LLP
000 Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile:
269.337.7703
(b)
if to the
Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
6. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
7. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
8. Severability.
In case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
9. Governing
Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of Michigan, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
10. Counterparts.
This Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts have
been signed by each party hereto and delivered to the other parties. The Company
and the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Prospectus Supplement (or the filing
by the Company of an electronic version thereof with the
Commission).
11. Confirmation
of Sale. The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Prospectus Supplement (or the
filing by the
ANNEX I
- 3
ANNEX I - 4
EXHIBIT
A
INVESTOR
QUESTIONNAIRE
Pursuant
to Section 3 of Annex I to the Agreement, please provide us with the
following information:
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1.
The exact name that your Shares and Warrants are to be registered
in. You may use a nominee name if appropriate:
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2. The
relationship between the Investor and the registered holder listed in
response to item 1 above:
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3. The
mailing address of the registered holder listed in response to item 1
above:
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4. The
Social Security Number or Tax Identification Number of the registered
holder listed in the response to item 1 above:
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5. Name
of DTC Participant (broker-dealer at which the account or accounts to be
credited with the Shares are maintained):
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6.
DTC Participant Number:
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7.
Name of Account at DTC Participant being credited with the
Shares:
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8.
Account Number at DTC Participant being credited with the
Shares:
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Exhibit
A - 1
