FIRST AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
FIRST
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
This First Amendment to the Securities
Purchase Agreement (the “First
Amendment”) is entered into effective as of February 16, 2010, by and
among Cascade Bancorp, an Oregon corporation, (the “Company”), Xxxxx X. Xxxxxx,
in his individual capacity (the “Investor”), Two-Forty
Associates, a Pennsylvania limited partnership, the Xxxxx X. Xxxxxx 2008 Grantor
Retained Annuity Trust, a Florida irrevocable trust, and the Xxxxx X. Xxxxxx
0000 Xxxxxxxxxx Charitable Lead Annuity Trust, a Florida charitable annuity
trust, and amends that certain Securities Purchase Agreement, dated October 29,
2009 (the “Agreement”),
between the Company and Investor. All capitalized terms not defined herein shall
have the meaning ascribed to such term in the Agreement.
RECITALS
A. The
Agreement contemplated that concurrently with the Closing, the Company would
close a Public Offering.
B. On
December 23, 2009, the Company withdrew its registration statement relating to
the proposed Public Offering.
C. In
lieu of raising capital through a Public Offering, the Company now desires to
raise capital by issuing and selling Common Shares through other, additional
private placements, in addition to the previously contemplated Other Private
Placements, and the Company and the Investor desire to amend the Agreement to
reflect the same.
D. Concurrently
herewith, the Company and other parties to the previously executed Other
Securities Purchase Agreements will execute an amendment to said agreements to
reflect the foregoing.
AMENDMENT
In consideration of the mutual promises
and undertakings described in this Amendment, the Company, Investor and the
other parties hereto, intending to be legally bound, agree as
follows:
1. Purpose. The purpose of this
Amendment is to amend and supplement the terms and conditions set forth in the
Agreement by incorporating the additional provisions set forth
below.
2. Amendment to all references to
“Public Offering”. The Agreement is amended by deleting all
references to the defined term “Public Offering” and replacing all such
references with the term “Additional Investments,” which term is defined
below.
3. Amendment to Recital
D. Recital D of the
Agreement is amended by deleting current Recital D in its
entirety and replacing it with the following new Recital
D:
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D. Additional
Investments. Concurrently with the investment contemplated herein and the
Other Private Placements, the Company will sell Common Shares in private
placements to other investors under separate written agreements, with the
closing of such transactions to occur simultaneously with the closing of the
transaction described herein and the Other Private Placements (such private
placements to other investors, the “Additional
Investments”).
4. Amendment to Section
1.2.
(a) Amendment to Subsection
1.2(a). The Agreement is amended by deleting current Section 1.2(a) in its
entirety and replacing it with the following new Section
1.2(a):
(a) Subject
to the satisfaction of the conditions to the closing set forth in Section
1.2(c), the closing shall take place simultaneously with the closing of the
Additional Investments and the Other Private Placements or as shall be agreed
upon in writing by the parties hereto, at the offices of the Company located at
0000 XX Xxxx Xxxxxx, Xxxx, Xxxxxx 00000 or such other location as agreed by the
parties in writing (the “Closing”). The
date of the Closing is referred to as the “Closing
Date.” Subject to the satisfaction of the conditions described
in Section 1.2(c), at the Closing, the Company will deliver to the Investor one
or more certificates representing such number of whole shares of Common Stock
(the “Purchased
Shares”) determined by dividing (i) $25,000,000 (the “Purchase Price”) by the
lesser of (A) $0.87 per share and (B) the lowest price per share that the
Company sells Common Stock in any of the Additional Investments and the Other
Private Placements, against payment by the Investor of $25,000,000 by wire
transfer of immediately available United States funds to a bank account
designated by the Company.
(b) Amendment to Subsection
1.2(b). The Agreement is amended by deleting current Section 1.2(b) in its
entirety. The Agreement is further amended such that all references to the
“Securities” in the Agreement shall refer to the Purchased Shares.
(c) Amendment to Subsection
1.2(c). The Agreement is amended by deleting current Section 1.2(c)(1)(vi)
in its entirety and replacing it with the following new Section
1.2(c)(1)(vi):
(a) the
Company shall receive proceeds (net of underwriting commissions and discounts)
from the sale of Common Shares of an aggregate amount not less than $150 million
(which includes the Purchase Price), contemporaneously with the Closing, from
the
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proceeds
of the Additional Investments, from the Other Private Placements and from the
Investor as contemplated by this Agreement, and all of such proceeds, other than
(A) amounts used to repurchase the trust preferred securities pursuant to the
Trust Preferred Securities Repurchase Agreements and to pay related fees and
expenses (which related fees and expenses shall not exceed $2.7 million); (B)
amounts used to reimburse the Investor and the investors in the Other Private
Placement for their respective fees and expenses pursuant to this Agreement and
the Other Securities Purchase Agreement (which amounts shall not exceed $3.15
million); (C) amounts to pay expenses related to the Additional Investments, the
Special Shareholders Meeting and the transactions contemplated by this Agreement
and the Other Purchase Agreements (which amounts shall not exceed $1.5 million);
and (D) up to $1 million which will remain at the Company for working capital
purposes, shall be contributed as capital to the Company’s principal depository
institution subsidiary;
(d) Amendment to Subsection
1.2(c). The Agreement is amended by deleting current Section
1.2(c)(1)(viii) in its entirety and replacing it with the following new
Section
1.2(c)(1)(viii):
(viii) the
Company shall have reimbursed the Investor for out-of-pocket fees and expenses
incurred by the Investor in connection with the transactions contemplated hereby
and by the Agreement and with any proposed financing thereof, including, but not
limited to, fees and disbursements of legal counsel, accounting and financial
advisors, credit review and investment banking advisors, up to $1,550,000 in the
aggregate;
(e) Amendment to Subsection
1.2(c). The Agreement is amended by deleting current Sections 1.2(c)(1)(x)
and 1.2(c)(1)(xi) each in
its entirety. The Agreement is further amended by deleting Exhibit B
to the Agreement and replacing all references to “Exhibit C” with “Exhibit
B.”
5. Amendment to Section
3.1. The Agreement is amended by deleting current Section 3.1(c) in its
entirety.
6. Amendment to Section
3.2. The Agreement is amended by deleting current Section 3.2 in its
entirety and replacing it with the following new Section
3.2:
3.2 Expenses. On
the earlier of the Closing Date and the termination of this Agreement, other
than a termination under circumstances that are directly and solely attributable
to a material breach by the Investor, the Company shall directly reimburse the
Investor for all out-of-pocket fees and expenses incurred in
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connection
with due diligence efforts, the negotiation and preparation of the Transaction
Documents and undertaking of the transactions contemplated by the Transaction
Documents, including, but not limited to, the Investor’s accounting, financial
and investment banking advisors, legal counsel and credit review, but excluding
the purchase or exercise price for any of the Purchased Shares, in an aggregate
amount not to exceed $1,550,000. The Company shall be responsible for
all closing and annual administrative fees and expenses, including all costs
incurred to register the Registrable Securities and to obtain the Stockholder
Approvals, the fees and expenses of any Company advisors (including Company
counsel, the Company’s accounting and financial advisors and other professional
fees), SEC registration fees and related expenses, and fees and expenses of any
broker or finders. Other than as set forth in this Section 3.2 and
Section 4.7(b), each of the parties will
bear and pay all other costs and expenses incurred by it or him or on its or his
behalf in connection with the transactions contemplated under the Xxxxxx
Transaction Document.
7. Amendment to Section
5.1.
(a) Amendment to Subsection
5.1(b). The Agreement is amended by deleting current Section 5.1(b) in its
entirety and replacing it with the following new Section
5.1(b):
(b) by
the Company, upon written notice to the Investor, in the event that the
conditions of Closing set forth in Section 1.2(c)(2) are not satisfied on or
before May 31, 2010;
(b)
Amendment to Subsection
5.1(d). The Agreement is amended by deleting current Section 5.1(d) in its
entirety and replacing it with the following new Section
5.1(d):
(d) by
the Investor, upon written notice to the Company, in the event that the
conditions of Closing set forth in Section 1.2(c)(1) are not satisfied on or
before May 31, 2010;
8. Addition of Section
4.13. The Agreement is amended by adding the following Section
4.13:
MFN
Provision. If the Company, in connection with the Other
Private Placements or the Additional Investments enters into an agreement that
contains terms more favorable to any investor than the terms provided to the
Investor under this Agreement, then the Company will modify or revise the terms
of this Agreement in order for the transaction contemplated hereby to reflect
any more favorable terms provided to any other investors in connection with the
Other Private Placements or the Additional Investments.
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9. Conflict. To the
extent there is a conflict between the terms and provisions of this Amendment
and the Agreement, the terms and provisions of this Amendment will
govern.
10. No Further Amendment. Except
as expressly modified by this Amendment, the Agreement shall remain unmodified
and in full force and effect. The Company and Investor hereby ratify their
respective obligations thereunder.
11. Third Party
Beneficiaries. This Amendment is for the sole benefit of the
parties hereto and their successors and permitted assigns and subject to Section
6.12 of the Agreement, nothing herein expressed or implied will give or be
constructed to give to any other person or entity any legal or equitable rights
hereunder.
12. Governing Law. This Amendment will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such
State. The parties hereto irrevocably and unconditionally agree that
any suit or proceeding arising out of or relating to this Amendment will be
tried exclusively in the U.S. District Court for the Southern District of New
York or, if that court does not have subject matter jurisdiction, in any state
court located in The City and County of New York and the parties agree to submit
to the jurisdiction of, and to venue in, such courts.
13. Waiver of Jury
Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
14. Counterparts and Facsimile.
For the convenience of the parties hereto, this Amendment 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 instrument. Executed signature pages to this Amendment may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.
[signature page
follows]
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IN WITNESS WHEREOF, the parties hereto
have executed this Amendment dated as of the date first set forth
above.
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By:
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/s/
X.X. Xxxxxx
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Name:
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X.X.
Xxxxxx
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Title:
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Executive
Vice President and Chief Financial Officer
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XXXXX
X. XXXXXX
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/s/
Xxxxx X. Xxxxxx
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TWO-FORTY
ASSOCIATES
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Trustee
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THE
XXXXX X. XXXXXX 2008 GRANTOR RETAINED ANNUITY TRUST
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By:
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/s/ Xxxxx X. Xxxxxx | ||
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Trustee
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