EXHIBIT 10.46
THIS TRADING PLAN IS SUBJECT TO ARBITRATION PURSUANT TO THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, AS MODIFIED HEREIN.
Rule l0b5-1 Trading Plan
This Trading Plan dated April 11, 2005 (the "Trading Plan") is entered into
between Community Capital Corporation ("Purchaser") and FIG Partners, LLC
("FIG"), acting as agent, for the purpose of establishing a trading plan that
complies with Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Purchaser and FIG agree as follows:
1. Specific Plan of Purchase. FIG agrees to effect Purchases of common stock,
par value $1.00 per share, of Purchaser (the "Stock") on behalf of
Purchaser in accordance with the specific instructions set forth in Exhibit
A hereto (the "Purchases Instructions").
2. Fees/Commissions. Purchaser shall pay FIG $.04 per share for stock
purchased; such amount to be added by FIG to the principal purchase price
for securities purchased under this Trading Plan.
3. Purchaser's Representations and Warranties. As of the date hereof,
Purchaser represents and warrants that:
(a) Purchaser is not aware of any material nonpublic information
concerning Purchaser or any securities of Purchaser;
(b) Purchaser is entering into this Trading Plan in good faith and not as
part of a plan or scheme to evade the prohibitions of Rule 10b5-1; and
(c) Purchaser is not subject to any legal, regulatory or contractual
restriction or undertaking that would prevent FIG from conducting
purchases in accordance with this Trading Plan.
4. Agreements by Purchaser.
(a) Delivery of Funds. Purchaser agrees to deliver the appropriate funds
for all shares of stock to be bought pursuant to this Trading Plan
into an account at FIG in the name of and for the benefit of Purchaser
(the "Plan Account") via normal T + 3 settlement after each and every
purchase. Upon notification from FIG, if any, that the amount
delivered is less than the amount purchased, Purchaser agrees to
deliver promptly to the Plan Account the appropriate funds necessary
to eliminate this shortfall.
(b) No Influence. Purchaser acknowledges and agrees that Purchaser does
not have, and shall not attempt to exercise, any influence over how,
when or whether to effect Purchases of Stock pursuant to this Trading
Plan.
(c) Discretion. Purchaser acknowledges and agrees that FIG and its
affiliates and any of their respective officers, employees or other
representatives shall not exercise discretionary authority or
discretionary control in connection with effecting Purchases under
this Trading Plan, except pursuant to the Purchaser's Instructions
under this Trading Plan or the express provisions of this Trading
Plan.
(d) Relief from Obligation to Effect Purchases. Purchaser understands that
FIG may not be able to effect a Stock purchase due to a market
disruption or a legal, regulatory, or contractual restriction
applicable to FIG. If any purchase cannot be executed as required by
this Trading Plan, due to market disruption, a legal, regulatory or
contractual restriction applicable to FIG or any other event, FIG
agrees to effect such purchase as promptly as practical after the
cessation or termination of such market disruption, applicable
restriction or other event, subject to the instructions set forth in
this letter and in Exhibit A. In the event FIG is unable to effect a
Stock purchase for the reasons set forth in this paragraph, FIG will
promptly notify Purchaser's representatives in accordance with
paragraph 9 below.
5. Suspension. Purchases under this Trading Plan shall be suspended as
follows:
(a) Promptly after the date on which FIG receives notice from Purchaser of
legal, contractual or regulatory restrictions applicable to Purchaser
or Purchaser's affiliates that would prevent FIG from buying Stock for
Purchaser's account during the Plan Purchases Period (as defined
below) (such notice merely stating that there is a restriction
applicable to Purchaser without specifying the reasons for the
restriction), including a restriction based on Purchaser's awareness
of material nonpublic information in connection with a tender offer
for Purchaser's securities (transactions on the basis of which Rule
14e-3 of the Exchange Act could be violated).
(b) In the event of a Qualifying Securities Offering (as defined below),
from the Suspension Date until FIG receives notice from Purchaser of
the Resumption Date (each as defined below); provided, however, that
(i) FIG has received reasonable notice of such Qualifying Securities
Offering from Purchaser; and (ii) Purchaser certifies that Purchaser
has no control over the date on which the Preliminary Offering
Document or Underwriting Agreement (each, as defined below) is filed,
used, distributed or executed, as the case may be.
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(c) "Qualifying Securities Offering" means any offering of securities of
Purchaser for cash in which the lead underwriter, lead manager,
initial purchaser, placement agent or other entity performing a
similar function (each, an "Underwriter") requires Purchaser to agree
to restrict Purchaser's ability to effect Purchases pursuant to this
Trading Plan. "Suspension Date" means the earlier of (i) the date on
which a preliminary prospectus, offering memorandum, offering circular
or other disclosure document (each, a "Preliminary Offering Document")
is first used to market securities of Purchaser by the Underwriter, or
(ii) if no such offering document is used in connection with a
Qualifying Securities Offering, the date on which the underwriting
agreement, purchase agreement, placement agent agreement or similar
agreement (each, an "Underwriting Agreement") is entered into by the
Underwriter and Purchaser. "Resumption Date" means the day immediately
following the expiration of the time period during which Purchaser was
restricted from effecting Purchases pursuant to this Trading Plan in
accordance with the Underwriting Agreement.
(d) In the event that FIG becomes aware of material nonpublic information
concerning Purchaser or the Stock, FIG may be required by applicable
law or, in its sole discretion, find it advisable, to suspend
Purchases under this Trading Plan. In such case, FIG shall promptly
notify Purchaser of the suspension of Purchases under this Trading
Plan.
6. Effectiveness and Termination. This Trading Plan is effective as of the
date first written above and will terminate on the earliest to occur of the
following (the "Plan Purchases Period"):
(a) on October 31, 2005;
(b) upon the determination by FIG, or promptly after the determination by
Purchaser and notice to FIG (either of which determinations must be
reasonable), that this Trading Plan does not comply with Rule 10b5-1;
(c) the date that the aggregate number of shares of Stock bought pursuant
to this Trading Plan reaches 65,156 shares; or
(d) Purchaser delivers written notice to FIG to terminate the Trading Plan
for any reason.
7. Indemnification.
(a) Purchaser agrees to indemnify and hold harmless FIG and its directors,
officers, employees and affiliates from and against all claims,
losses, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) arising out of or
attributable to FIG's actions taken or not taken in compliance with
this Trading Plan, arising out of or attributable to any breach by
Purchaser of this Trading Plan (including Purchaser's representations
and warranties hereunder), or any violation by Purchaser of applicable
laws or regulations. This indemnification shall survive termination of
this Trading Plan.
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(b) FIG agrees to indemnify and hold harmless Purchaser, and its
directors, officers, employees and affiliates from and against all
claims, losses, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
arising out of or attributable to the negligence or willful misconduct
of FIG in connection with this Trading Plan, any breach by FIG of this
Trading Plan (including FIG's representations and warranties
hereunder), or any violation by FIG of applicable laws or regulations.
This indemnification shall survive termination of this Trading Plan.
8. Agreement to Arbitrate. If a dispute, controversy or claim (whether based
upon contract, tort, statute, common law or otherwise) (collectively a
"Dispute") arises from or relates directly or indirectly to the subject
matter hereof, and if the Dispute cannot be settled through direct
discussions, the parties shall first endeavor to resolve the Dispute by
participating in a mediation administered by the American Arbitration
Association (the "AAA") under its Commercial Mediation Rules before
resorting to arbitration. Thereafter, any unresolved Dispute shall be
settled by binding arbitration administered by the AAA in accordance with
its Commercial Arbitration Rules and judgment on the award rendered by the
arbitrator, after the review rights set forth below have been exhausted,
may be entered in any court having jurisdiction. The arbitration and
mediation proceedings shall be conducted in Columbia, South Carolina on an
expedited basis before a neutral mediator or arbitrator, as the case may
be, (or multiple arbitrators if called for by the Commercial Arbitration
Rules) who is a member of the Bar of the State of South Carolina, and has
been actively engaged in the practice of law for at least fifteen (15)
years, specializing in commercial transactions with substantial experience
in the subject matter of this Trading Plan. Any attorney who serves as an
arbitrator shall be compensated at a rate equal to his or her current
regular hourly billing rate. Upon the request of either party, the
arbitrator's award shall include findings of fact and conclusions of law
provided that such findings may be in summary form. Either party may seek
review of the arbitrator's award before an arbitration review panel
comprised of three (3) arbitrators qualified in the same manner as the
initial arbitrator (as set forth above) by submitting a written request to
the AAA. The right of review shall be deemed waived unless requested in
writing within ten (10) days of the receipt of the initial arbitrator's
award. The arbitration review panel shall be entitled to review all
findings of fact and conclusions of law in whatever manner it deems
appropriate and may modify the award of the initial arbitrator in its
discretion. The prevailing party in any arbitration proceeding shall be
entitled to an award of all reasonable out-of-pocket costs and expenses
(including attorneys' and arbitrators' fees) related to the entire
arbitration proceeding (including review if applicable). A party shall not
be prevented from seeking temporary injunctive relief before a court of
competent jurisdiction in an emergency or other exigent situation, but
responsibility for resolution of the dispute shall be appropriately
transferred to the arbitrator(s) upon appointment in accordance with the
provisions hereof.
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9. Notices.
(a) All notices to FIG under this Trading Plan shall be provided to FIG in
the manner specified by this Trading Plan by email to the address
indicated below, by telephone at 000-000-0000, by facsimile at
000-000-0000, or by certified mail to the address below:
0000 Xxxxxxxxx Xx. XX Xxxxx 000
Xxxxxxx, XX 00000
Email:xxxxxxxx@xxxxxxxxxxx.xxx
Facsimile:000-000-0000
(b) All notices to Purchaser under this Trading Plan shall be given to
Purchaser in the manner specified by this Trading Plan by email to the
addresses indicated below, by telephone at (000) 000-0000, by
facsimile at (000) 000-0000, or by certified mail to the address
below:
0000X Xxxxxxx 00 Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Officers to be notified of any repurchase activity the morning after the
trade date:
Name Title Phone Email
Xxxx Xxxxxx CFO (000) 000-0000 xxxxxxx@xxxxxxxxxxxxx.xxx
Xxx Xxx X. Xxx Vice President (000) 000-0000 xxxx@xxxxxxxxxxxx.xxx
Xxxx Xxxx Xxxx (000) 000-0000 xxxxxx@xxxxxxxxxxxxx.xxx
10. Amendments and Modifications. This Trading Plan may be amended only upon
the prior written consent of both parties hereto.
11. Assignment. The rights and obligations under this Trading Plan may not be
assigned or delegated without the prior written consent of the other party
hereto.
12. Inconsistency with Law. If any provision of this Trading Plan is or becomes
inconsistent with any applicable present or future law, rule or regulation,
that provision will be deemed modified or, if necessary, rescinded in order
to comply with the relevant law, rule or regulation. All other provisions
of this Trading Plan will continue and remain in full force and effect.
13. Governing Law. This Trading Plan shall be governed by and construed in
accordance with the internal laws of the State of South Carolina and may be
modified or amended only by a writing signed by the parties hereto.
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14. Entire Agreement. This Trading Plan, including Exhibits, constitutes the
entire agreement between the parties with respect to this Trading Plan and
supercedes any prior agreements or understandings with regard to this
Trading Plan.
15. Counterparts. This Trading Plan may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
16. FIG's Representations and Warranties. FIG hereby acknowledges that the
repurchase by Purchaser of securities pursuant to this Trading Plan is
subject to certain rules and regulations promulgated by the Securities and
Exchange Commission, including but not limited to Rule 10b-18. FIG hereby
agrees to comply with any and all such rules and regulations in effecting
the purchases pursuant to the Trading Plan.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Trading Plan as of the date first written above.
COMMUNITY CAPITAL CORPORATION
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
By: Xxxxxxx X. Xxxxxxx
Title: President and CEO
FIG PARTNERS, LLC
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Principal
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EXHIBIT A
This Exhibit A may not be amended except in accordance with the Trading Plan.
SPECIFIC INSTRUCTIONS
1. FIG shall enter a Buy Order for a specified Purchase Amount (as defined
below) for the account of Purchaser on each specified Purchase Day (as
defined below) at the specified Purchase Price (as defined below), subject
to the following restrictions:
In no event shall FIG buy any shares of Stock pursuant to the Trading
Plan prior to April 25, 2005.
2. A "Purchase Day" shall be any day during the Plan Purchases Period that the
limit price specified below is met; provided, however, that if any Purchase
Day is not a Trading Day, such Purchase Day shall be deemed to fall on the
next succeeding Trading Day within the Plan Purchases Period.
3. The "Purchase Amount" for any Purchase Day shall be determined in
accordance with the following formula: (1)
Until the Trading Plan is terminated, purchase the maximum amount of CYL
common stock allowed under SEC Rule 10b-18 on a daily basis for the period
beginning on the day listed in Paragraph 1 of this Exhibit A and ending on
October 31, 2005. Purchaser will have no control as to the actual timing of
the purchases or the amount to be purchased. FIG will determine the
appropriate SEC Rule 10b-18 non-block calculation on a weekly basis and
will have full discretion as to time and amount of purchases provided the
limit price specified below is met and the total aggregate number of shares
does not exceed (1) the maximum allowed by SEC Rule 10b-18 and (2) the
maximum allowed by the repurchase plan authorized by the Board of
Directors.
4. The Purchase Price shall be less than or equal to $23.00 per share.
5. If a limit order is entered pursuant to this Trading Plan it will be
entered as a day order.
6. If FIG cannot buy the Purchase Amount on any Purchase Day, then:
(a) Subject to the restrictions in paragraph 1 above, FIG may buy the
amount of such shortfall as soon as, and to the extent
practicable, on the immediately succeeding Trading Day. In the
event all or part of such shortfall cannot be bought on the
immediately succeeding Trading Day, the remaining amount of such
shortfall may be bought on the immediately succeeding Trading Day
until all such shares are purchased or the Trading Plan expires.
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(1) This formula, together with the other provisions of this section, must
identify the amount, price and dates with the specificity required by Rule
10b5-1(c)(1)(i)(B)(2).
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(b) If any such shortfall referred to in paragraph 6(a) above exists
after the close of trading on the last Trading Day of the Plan
Purchases Period, FIG's authority to buy such shares for the
account of Purchaser under the Trading Plan shall terminate.
6. The Purchase Amount and the Purchase Price shall be adjusted automatically
on a proportionate basis to take into account any stock split, reverse
stock split or stock dividend with respect to the Stock or any change in
capitalization with respect to Purchaser that occurs while the Trading Plan
is in effect.
7. The term "Stock" as used in the Trading Plan shall include any class or
series of common stock of Purchaser into which the Stock shall be converted
whether pursuant to a reclassification, reorganization, re-incorporation or
similar event.
8. A "Trading Day" is any day during the Plan Purchases Period that the AMEX
(the "Principal U.S. Market") is open for business and the Stock trades
regular way on the principal U.S. market; provided, however, that a
"Trading Day" shall mean only that day's regular trading session of the
Principal U.S. Market and shall not include any extended-hours or
after-hours trading sessions that the Principal U.S. Market may allow.
9. FIG may buy stock on any national securities exchange, in the
over-the-counter market, on an automated trading system or otherwise.
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