STOCK PURCHASE AGREEMENT
EXHIBIT
4.4
This
Stock Purchase Agreement (the “Agreement”) is made as of this 29th day of
January, 2008 between Belvedere SoCal, a California corporation and registered
bank holding company (the “Company”) and Belvedere Capital Fund II L.P.,
a
Delaware
limited partnership(“Purchaser”).
RECITALS
WHEREAS
the Company is the issuer of no par common shares (the “Shares”) which are
quoted on the OTC Bulletin Board and regarding which the Company
files certain reports with the Securities and Exchange Commission pursuant
to
Section 15(d) of the Securities Exchange Act of 1934, as amended;
WHEREAS
the Company is preparing to issue up to $22 million of additional authorized
but
unissued Shares (the “Subject Shares”), and is willing and able to do so for the
consideration and on the terms set forth herein;
WHEREAS
the Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated
by the Securities and Exchange Commission;
WHEREAS
the Purchaser is the principal owner of the Company and is familiar with its
business prospects, and is willing and able to make an investment in the Subject
Shares at the price and on the terms set forth herein;
WHEREAS
the proceeds from the sale of the Subject Shares will be used to fund the cash
purchase price to be paid by the Company in its acquisition of Spectrum Bank,
Irvine, California (the “Acquisition”); and
WHEREAS
Purchaser has provided significant
assistance to the Company in connection with the structuring, formulation,
analysis and negotiation of the Acquisition.
NOW,
THEREFORE, in consideration of the foregoing, the covenants and consideration
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereby agree
as follows:
ARTICLE
I
DEFINITIONS
When
used
in this Agreement with capitalized initials, unless the context clearly requires
a different meaning, each of the following terms shall be given the meaning
ascribed to it in this article, as follows:
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“Acquisition”
shall have the meaning given such term in the recitals.
“Act”
means the Securities Act of 1933, as amended.
“Business
Day” means a day other than Saturday or Sunday when all or substantially all
banks in California are open for business. The term shall exclude (1) every
legal holiday established as such by the laws of the United States or the State
of California, and (2) any other day on which banking institutions in San
Francisco are authorized or obligated by law or by federal order to
close.
“Closing”
means the consummation of the transaction contemplated by this Agreement, as
set
forth in Section 2.2.
“Closing
Date” means the date on which the Closing occurs, determined pursuant to Section
2.2.
“Company”
shall have the meaning given such term in the first paragraph of this
Agreement.
“Governmental
Entity” means any court or tribunal in any jurisdiction or any United States
federal, state, district, domestic, or other administrative agency, department,
commission, board, bureau or other governmental authority or
instrumentality.
“Law”
means any statute or law or any judgment, decree, injunction, order, regulation
or rule of any Governmental Entity.
A
“party”
shall mean the Company or the Purchaser.
“Per
Share Purchase Price” shall have the meaning given such term in Section
2.1.
“Person”
means any natural person, corporation, trust, association, unincorporated body,
partnership, joint venture, Governmental Entity, statutorily or regulatory
sanctioned entity or any other person or organization which may be given
standing as a person in any court located in the United States of
America.
“Purchaser”
shall have the meaning given such term in the first paragraph of this
Agreement.
“SEC”
means the United States Securities and Exchange Commission.
“Shares”
shall have the meaning given such term in the recitals.
“Subject
Shares” shall have the meaning given such term in the recitals.
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ARTICLE
II
PURCHASE
AND SALE OF SHARES; TRANSACTION FEE
Section
2.1. Purchase
and Sale of Shares. Upon and subject to all the terms and conditions of
this Agreement, the Company agrees to sell, and the Purchaser agrees to
purchase, at the Per Share Purchase Price, a number of Shares equal
to 22 million divided by the Per Share Purchase Price. The Per Share
Purchase Price shall be equal to the average of the daily closing bid prices
of
a Share as reported on the OTC Bulletin Board during the 5 consecutive trading
sessions prior to the Closing (as defined below), whether or not trades occurred
on those days.
Section
2.2. Closing. The closing
of this transaction (the “Closing”) shall take place at the offices of the
Company, Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx,
simultaneously with the closing of the Acquisition (“Closing
Date”).
Section
2.3. Delivery
and Payment. At the Closing, the Company shall deliver to the Purchaser a
certificate or certificates, in such reasonable denominations as the Purchaser
may have designated, and registered in the name of the Purchaser, representing
the number of Subject Shares the Purchaser is acquiring in the transaction.
At
the same time and place, the Purchaser shall deliver $22 million by wire
transfer of immediately available funds to an account designated by the
Company.
Section
2.4. Restricted
Securities. Purchaser
understands that the Subject Shares have not been registered with the SEC
pursuant to the Act and therefore have the status of “restricted securities,”
which may not be sold or otherwise disposed of unless such sale or disposition
has been registered with the SEC or is exempt from the registration requirement.
Purchaser shall not sell or otherwise dispose of the Subject Shares without
such
registration or exemption, and until such time as the Subject Shares have been
registered with the SEC, the Company shall direct its Secretary and transfer
agent to refuse to transfer any of the Subject Shares on the records of the
Company without receiving evidence reasonably satisfactory to the Company that
such transfer is exempt from the registration requirement. All certificates
representing the Subject Shares, whether upon original issuance or upon transfer
(as, if and when permitted hereby and by applicable Law) shall be
endorsed with a legend giving notice of the transfer restriction to prospective
purchasers, in form as follows:
THE
SHARES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THESE
SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
TO ANY PERSON AT ANY TIME, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH SHARES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE
COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
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Section
2.5. Transaction
Fee. In consideration of the services rendered by Purchaser to
the Company in the Acquisition, the Company shall pay at the effective time
of
the Acquisition to the Purchaser a transaction fee equivalent to two percent
(2%) of the total consideration paid to the Spectrum Bank shareholders, which
is
estimated to be approximately $740,000.
ARTICLE III
PURCHASER’S
WARRANTIES AND
REPRESENTATIONS
To
induce the Company to enter into this
Agreement, the Purchaser hereby warrants and represents as
follows:
Section
3.1. Standing
and
Capacity. Purchaser has the capacity
and all necessary power and authority necessary to enter into this Agreement
and
perform all its obligations hereunder.
Section
3.2. Authority
of
Purchaser. The execution
and delivery by Purchaser of this Agreement and the consummation of
the transactions contemplated by both have been duly and validly authorized
by
all necessary corporate or other organizational action on the part of Purchaser,
and this Agreement is a valid and binding obligation of Purchaser enforceable
in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, liquidation, receivership, conservatorship, insolvency,
moratorium or other similar laws affecting the rights of creditors generally
and
by general equitable principles. Neither the execution and delivery
by Purchaser of this Agreement, the consummation of the transactions
contemplated herein, nor compliance by Purchaser with any of the provisions
hereof, will: (a) violate any provision of its charter documents; or (b) violate
any Law applicable to Purchaser or any of its properties or assets. No consent
of any Governmental Entity having jurisdiction over any aspect of the business
or assets of Purchaser, and no consent of any Person, is required in connection
with the execution and delivery by Purchaser of this Agreement or the
consummation by Purchaser of the transactions contemplated
hereby.
Section
3.3. Compliance
with Obligations.The
execution and delivery by the Purchaser of this Agreement do not, and the
performance by the Purchaser of its obligations hereunder and the transactions
contemplated hereby will not, violate, conflict with or constitute a breach
of,
or a default under, any material agreement or instrument to which it is a party
or which is binding on it or on its assets.
Section
3.4. Consents
and
Approvals.All consents,
approvals, authorizations and orders of Governmental Entities or other third
parties required for the Purchaser to execute and deliver this Agreement and
to
purchase the Subject Shares, and otherwise to consummate the transactions
contemplated hereby, have been obtained.
Section
3.5. Litigation.There
is no legal action, suit,
investigation or proceeding pending or, to the knowledge of the Purchaser,
threatened against or affecting the Purchaser or its assets which could
materially and adversely affect its ability to perform or observe any obligation
or condition under this Agreement.
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Section
3.6. Investor
Qualifications. Purchaser
is an “accredited investor” as defined by SEC Rule 501(a). Purchaser is
experienced at evaluating and investing in companies of the same type as the
Company, and has had the opportunity (a) to discuss the Company’s business,
management and financial affairs with executives of the Company, (b) to study
publicly available information about the Company and its industry as well as
to
review and study the books and records of the Company and the Bank, and (c)
to
seek the advice and reports of stock analysts, brokers, investment advisers,
industry consultants, attorneys, accountants, and other experts about the value
of the Subject Shares and the risks and benefits of an investment
therein.
Section
3.7. Investment
Intent. Purchaser is
purchasing for its own account, for investment purposes, and not with any
intention to resell, assign, transfer or otherwise distribute the Subject Shares
except as allowed by SEC Rule 144 or in an offering registered with the SEC
under the Act.
Section
3.8. Financing.
Purchaser has funds available to
it to consummate the purchase of the Subject Shares as contemplated by this
Agreement.
Section
3.9. No
Brokers. Purchaser has not
employed any broker, finder or intermediary in connection with the transactions
contemplated by this Agreement so as to give rise to any valid claim against
the
Company for any brokerage commission, finder’s fee or similar
compensation.
Section
3.10. No
Reliance. Purchaser is
relying entirely on its own research, investigation and analysis to support
its
decision to purchase the Subject Shares.
Section
3.11. Absence
of
FDIC insurance. Purchaser acknowledges
that
the Subject Shares are not deposits of any bank and are not insured by the
Federal Deposit Insurance Corporation or any Governmental Entity.
ARTICLE
IV
TERMINATION
Section
4.1. Termination.
This Agreement may be terminated
at any time prior to the Closing:
(a)
by the mutual written consent of the
Purchaser and the Company; or
(b)
by either such Purchaser or the
Company in writing if the Closing shall not have occurred on or
before the Closing Date.
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ARTICLE
V
MISCELLANEOUS
Section
5.1. Further
Assurances.Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use
their best efforts promptly to take, or cause to be taken, all actions and
promptly to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement.
Section
5.2. Survival
of
Provisions.Unless provisions indicate an
intention that an agreement is intended to survive Closing, all the covenants,
representations and warranties of the parties contained in this Agreement shall
expire upon the Closing, without prejudice to any claim for breach thereof
which
may have arisen before that time. All the provisions of this Article shall
survive either Closing or termination.
Section
5.3. Severability.
If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect.
Section
5.4. Injunctive
Relief.The Company and the
Purchaser acknowledge and agree that irreparable damage would occur in the
event
that any of the provisions of this Agreement were breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent or cure breaches of the provisions of this Agreement in any court of
the
United Statesor
any state thereof having
jurisdiction, this being in addition to any other remedy to which they may
be
entitled by law or equity. The party seeking injunctive relief shall not be
required to prove actual damages to obtain relief.
Section
5.5. Entire
Agreement; Amendment. This Agreement contains
the
entire understanding of the parties with respect to the transactions
contemplated hereby. No agreements, understanding, representations or assurances
shall have any effect unless set forth herein. This Agreement may be amended
only by an agreement in writing executed by the parties
hereto.
Section
5.6. Counterparts.
This Agreement may be
executed by the parties hereto in counterparts each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument. Neither party shall be bound by this Agreement unless and until
both
parties have duly executed a counterpart hereof.
Section
5.7. Notices.Any
notice under or relating to
this Agreement shall be given in writing and shall be deemed sufficiently given
when delivered by hand or by confirmed facsimile transmission, on the second
Business Day after a writing is consigned (delivery charges prepaid) to a
commercial overnight courier, and on the fifth Business Day after a writing
is
deposited in the mail, postage and other charges prepaid, addressed as
follows:
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If to Company: | Belvedere SoCal | |
Xxx Xxxxxxxx Xxxxx, Xxxxx 000 | ||
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||
with a copy to: |
Xxxx
X.
Xxxxxx, Esq.
Xxxxxxx,
Xxxxxx &
Xxxxx
0000
Xxxxx
Xxxxxx
Xxx
Xxxx Xxxxxx,
XX 00000
|
|
|
||
If to Purchaser: |
Belvedere
Capital Fund II L.P.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx
00000
|
or
to such other address as either party
may, from time to time, designate in a written notice given in a like
manner.
Section
5.8. Waivers.
No waiver by either party
of any default with respect to any provision, condition or requirement hereof
shall be deemed to be a waiver of any other provision, condition or requirement
hereof; nor shall any delay or omission of either party to exercise any right
hereunder in any manner impair the exercise of any such right accruing to it
thereafter.
Section
5.9. Submission
to Jurisdiction; Consent to Service of Process. With respect to any claim
arising out of
this Agreement, (a) the Company and the Purchaser each irrevocably submits
to
the nonexclusive jurisdiction of the courts of the State of California and
the
United States District Court located in the City and County of San Francisco,
and (b) the Company and the Purchaser each irrevocably waives any objection
it
may have at any time to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any such court,
irrevocably waives any claim that any such suit, action or proceeding brought
in
any such court has been brought in an inconvenient forum and further irrevocably
waives the right to object, with respect to such suit, action or proceeding
brought in any such court, that such court does not have jurisdiction over
such
party; provided,
however, that nothing
in
this Section 5.9 shall be deemed to preclude either the Company or the Purchaser
from bringing an action or proceeding in respect of any such agreement in any
other jurisdiction.
Section
5.10. Successors
and Assigns. Except insofar
as transfer of the Subject Shares is restricted by this Agreement or by Law,
this Agreement shall be binding upon and inure to the benefit of the parties
and
their successors and legal representatives. No third party is
intended to have any rights by reason of, or to enforce, any provision of this
agreement.
Section
5.11. Governing
Law.THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
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IN
WITNESS WHEREOF, the Company and the
Purchaser have caused this Agreement to be duly executed and delivered as of
the
date first above written.
BELVEDERE SOCAL | BELVEDERECAPITALFUNDII L.P. | |||
By:
_____________________________
|
By:
_____________________________
|
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Name/Title
|
Name/Title
|
|||
|
|
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