EXHIBIT 10.12
CAPITAL SECURITIES PURCHASE AGREEMENT
December 14, 2005
THIS CAPITAL SECURITIES PURCHASE AGREEMENT (this "Purchase Agreement") is
made among Northrim Statutory Trust 2, a statutory trust created under the laws
of the State of Connecticut (the "Trust"), Northrim Bancorp, Inc. (the "Company"
and, collectively with the Trust, the "Offerors") and Xxxxxxx Xxxxx
International (the "Purchaser").
RECITALS:
A. The Trust desires to issue $10,000,000 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, U.S. Bank National
Association, as Institutional Trustee, and 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 U.S.
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 Debentures due March 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 U.S. 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 10,000 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 U.S. Bank National Association.
1.2 The certificate for the Capital Securities shall be delivered in
definitive form by the Trust on the Closing Date to the Purchaser or its
designee, and shall be registered in the name
(7) Northrim Bancorp, Inc.
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 December 14, 2005 (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, 4, 7, 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
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Purchaser agrees to the legends and transfer restrictions applicable to the
Capital Securities contained in the Declaration. The Purchaser represents that
it is an accredited investor within the meaning of Regulation D under the
Securities Act. The Purchaser represents and warrants that the office or offices
of the Purchaser in which its investment decision was made is located at the
address set forth in Section 3.1 hereof.
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.
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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.
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:
To the Offerors: Northrim Bancorp, Inc.
0000 X Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
To the Purchaser: Xxxxxxx Xxxxx International
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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
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THIS PURCHASE AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY
WAIVES ANY DEFENSE OF LACK OF PERSONAL 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.
NORTHRIM BANCORP, INC.
By: /s/ R. Xxxx Xxxxxxxx
-----------------------------
Name: R. Xxxx Xxxxxxxx
Title: Chairman, President & CEO
NORTHRIM STATUTORY TRUST 2
BY NORTHRIM BANCORP, INC., AS SPONSOR
By: /s/ R. Xxxx Xxxxxxxx
-----------------------------
Name: R. Xxxx Xxxxxxxx
Title: Chairman, President & CEO
(7) Northrim Bancorp, Inc. -6-
IN WITNESS WHEREOF, this Purchase Agreement is agreed to and accepted as
of the day and year first written above.
XXXXXXX XXXXX INTERNATIONAL
By: /s/ X.X. Xxxxxx
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Print Name: Xxxxxx Xxxxxx
Title: Director
(7) Northrim Bancorp, Inc. -7-
