EXHIBIT 4-1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of January 24, 2005 (this
"Agreement"), by and among The Banc Corporation, a Delaware corporation (the
"Company"), and the purchasers named on the signature pages hereto
(individually, an "Investor", and collectively, the "Investors");
WHEREAS, each of the Investors wishes to purchase, and the Company
wishes to issue and sell to each of the Investors, the number of shares of
common stock, par value $0.001 per share (the "Common Shares"), set forth below
such Investor's name on the signature pages of this Agreement; and
WHEREAS, concurrently with the execution of this Agreement, each of the
Investors shall enter into a Registration Rights Agreement (the "Registration
Rights Agreement") with the Company, and certain of the Investors shall enter
into employment agreements with the Company and shall be appointed to the
Company's Board of Directors.
In consideration of the premises and mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
AUTHORIZATION; PURCHASE OF COMMON SHARES
Section 1.1 The Common Shares. The Company has authorized the issuance
and sale pursuant to this Agreement of the Common Shares, each having such
rights, restrictions, and privileges as are contained in or accorded by (A) the
Restated Certificate of Incorporation (the "Certificate of Incorporation") of
the Company, (B) the Bylaws of the Company, and (C) the Registration Rights
Agreement. Subject to the terms and conditions hereof, the Common Shares will be
delivered to the Investors on the Closing Date (as defined in Section 2.1).
Section 1.2 The Purchase of Common Shares. Subject to the terms and
conditions of this Agreement, each Investor hereby irrevocably agrees to
purchase the number of Common Shares set forth below the Investor's name on the
signature page hereto for the purchase price specified in Section 2.1 hereof. An
Investor shall not be obligated to purchase any Common Shares unless the
conditions set forth in Article V hereof shall have been satisfied or waived.
The Company shall not be obligated to sell any Common Shares unless the
conditions set forth in Article VI hereof shall have been satisfied or waived.
ARTICLE II
CLOSING
Section 2.1 Sale and Purchase of the Common Shares.
(a) Subject to the terms and conditions of this Agreement, the
closing of the purchase and sale of the Common Shares provided for in this
Agreement (the "Closing") shall occur on January 24, 2005, or on such later date
as may be agreed upon in writing by the Company and the Investors (the "Closing
Date"). At the Closing, the Company shall sell to each of the Investors, and
each of the Investors shall purchase from the Company, the number of Common
Shares set forth below the Investor's name on the signature page hereto at a
purchase price per Common Share equal to the publicly reported per share closing
price of the Company's common stock on the last trading day immediately
preceding the Closing Date (the "Per Share Purchase Price"). On the Closing
Date, each Investor shall deliver the Aggregate Purchase Price (as defined
below) by wire transfer of immediately available U.S. funds to an account to be
designated by the Company; provided, however, that if so directed by the
Company, each Investor shall, prior to the Closing Date, deliver the Aggregate
Purchase Price, in immediately available U.S. funds, into an escrow account
pursuant to an escrow agreement (the "Escrow Agreement"), the form and substance
of which shall be agreed upon by the parties hereto. The aggregate purchase
price for the number of Common Shares to be purchased by each Investor shall be
the number of Common Shares purchased by each Investor multiplied by the Per
Share Purchase Price (the "Aggregate Purchase Price").
(b) As soon as practicable after the Closing, the Company
shall deliver, or cause to be delivered, to each of the Investors one or more
certificates registered in the name of each such Investor representing the
aggregate number of Common Shares purchased by such Investor against payment of
such Investor's Aggregate Purchase Price in accordance with the provisions of
Section 2.1(a) hereof.
Section 2.2 Place of Closing. The Closing will take place at the
offices of Xxxxxxx Xxxxx Xxxx & White LLP, One Federal Place, 0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Investors as
follows:
Section 3.1 Due Organization, Valid Existence and Authority of the
Company. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware. The Company has the corporate power and
authority to carry on its business as presently proposed to be conducted and is
duly licensed or qualified to do business and in good standing in each
jurisdiction in which its ownership or leasing of property or the conduct of its
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business requires such licensing or qualification, except where the failure to
be so licensed, qualified or in good standing would not have a material adverse
effect on the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). The
Company has full right, power and authority to enter into this Agreement, the
Registration Rights Agreement and the Escrow Agreement and to perform its
obligations hereunder and thereunder.
Section 3.2 Authorization and Validity of Agreements. This Agreement,
the Registration Rights Agreement and the Escrow Agreement have been duly
authorized, executed and delivered by the Company and constitute the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by (i)
applicable bankruptcy, reorganization, insolvency, moratorium and/or similar
laws relating to or affecting the rights of creditors generally, including
without limitation fraudulent conveyance provisions under applicable laws; (ii)
general principles of equity (regardless of whether considered in a proceeding
in equity or at law); and (iii) applicable laws relating to or affecting rights
to indemnity and contribution.
Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of
(i) 25,000,000 shares of common stock, par value $0.001 per share, of which, as
of December 31, 2004, 17,749,846 shares are issued and outstanding, and (ii)
5,000,000 shares of Series A Convertible Preferred Stock, par value $0.001 per
share (the "Preferred Stock"), of which 62,000 shares are issued and
outstanding, in each case having the rights, preferences and privileges
specified in the Certificate of Incorporation and the Bylaws of the Company.
(b) Except (i) as set forth above, (ii) as provided for in
connection with the transactions contemplated hereby, and (iii) as disclosed in
the Company's publicly available filings with the Securities and Exchange
Commission (the "SEC"), including exhibits thereto, there are no (A) outstanding
securities of the Company evidencing the right to purchase or subscribe for any
shares of capital stock of the Company, (B) outstanding or authorized options,
warrants, calls, subscriptions, rights, commitments or any other agreements of
any character obligating the Company to issue any shares of its capital stock or
any securities convertible into or evidencing the right to purchase or subscribe
for any shares of such stock, or (C) agreements or understandings with respect
to the voting, sale or transfer of any shares of capital stock of the Company.
(c) All the Common Shares issuable by the Company pursuant to
this Agreement will be, when issued and paid for and delivered in accordance
with the terms of this Agreement, duly authorized, validly issued, fully paid
and nonassessable.
Section 3.4 Approvals Required.
(a) Neither the execution and delivery of this Agreement or
the Registration Rights Agreement, nor the consummation of the transactions
contemplated hereby or thereby, nor compliance by the Company with any of the
provisions hereof or thereof will (i) conflict
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with or result in a breach of any provision of the Certificate of Incorporation
or Bylaws of the Company, (ii) constitute or result in a breach of any term,
condition or provision of, or constitute a default under, or give rise to any
right of termination, cancellation or acceleration with respect to, or result in
the creation of any lien, charge or encumbrance upon any property or asset of
the Company pursuant to, any note, bond, mortgage, indenture, license, agreement
or other instrument or obligation to which the Company is a party, or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company, except (in the case of clauses (ii) and (iii) above)
for such violations, rights, conflicts, breaches, creations or defaults which,
either individually or in the aggregate, will not have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole or adversely affect the
Company's right or ability to perform this Agreement or the Registration Rights
Agreement.
(b) No consent, approval or authorization (which has not been
obtained) of, or declaration, notice, filing or registration with, any
governmental or regulatory authority, or any other person, is required to be
made or obtained by the Company in connection with the execution and delivery by
the Company of this Agreement or the consummation by the Company of the
transactions contemplated hereby, except (i) any notice filings required by Rule
503 promulgated by the SEC and applicable state securities laws, (ii) any Forms
3 required to be filed with the SEC, and (iii) the Form 8-K to be filed with the
SEC following the Closing Date, disclosing certain terms of the transactions
contemplated by this Agreement.
Section 3.5 Private Offering of the Common Shares.
(a) The offer, issuance, sale and delivery of the Common
Shares pursuant to this Agreement is intended to be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act").
Neither the Company nor anyone acting on its behalf has taken or will take any
action with respect to the Common Shares, or any securities similar to the
Common Shares, or otherwise, that would bring the issuance and sale of the
Common Shares within the registration requirements of the Securities Act or
comparable provisions of any applicable state securities laws.
(b) In the case of each offer or sale of the Common Shares, no
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) was used in connection with the offering
of Common Shares by the Company or, to the best knowledge of the Company, any
person authorized to act on behalf of the Company, including, but not limited
to, any advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE INVESTORS
Each of the Investors hereby represents and warrants to the Company as
follows:
Section 4.1 Authority of the Investor. If an Investor is a natural
person, such Investor represents and warrants that (i) he is over 21 years of
age, (ii) the address set forth under his name on the signature page hereof is
his true and correct address and residence, and (iii) he has no current
intention of becoming a resident of any other state or jurisdiction in the
foreseeable future, unless such change in residence shall occur following the
Closing in connection with an Investor's employment with the Company or any of
its subsidiaries. If an Investor is not a natural person, (v) such Investor has
the full legal right, power, authority and approval required to (A) execute and
deliver, or authorize the execution and delivery of, this Agreement, the
Registration Rights and the Escrow Agreement and all other instruments executed
and delivered by or on behalf of such Investor in connection with the purchase
of Common Shares, and (B) purchase and hold such Common Shares, (w) the
signature of the party signing on behalf of such Investor is binding upon such
Investor, (x) the address set forth under such Investor's name on the signature
page hereof is its true and correct address, (y) such Investor has no current
intention of changing its address to any other state or jurisdiction in the
foreseeable future, and (z) such Investor has not been formed for the specific
purpose of acquiring such Common Shares, unless each beneficial owner of equity
securities or equity interests in such Investor qualifies as an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act.
Section 4.2 Authorization and Validity of Agreements. This Agreement,
the Registration Rights Agreement and the Escrow Agreement have been duly
authorized, executed and delivered by such Investor and constitute the valid and
binding obligations of such Investor, enforceable against such Investor in
accordance with their respective terms, except as may be limited by (i)
applicable bankruptcy, reorganization, insolvency, moratorium and/or similar
laws relating to or affecting the rights of creditors generally, including
without limitation fraudulent conveyance provisions under applicable laws; (ii)
general principles of equity (regardless of whether considered in a proceeding
in equity or at law); and (iii) applicable laws relating to or affecting rights
to indemnity and contribution.
Section 4.3 Investment Intent. (a) Each Investor, severally and not
jointly, represents and warrants to, and covenants and agrees with, the Company
that the Common Shares to be acquired by such Investor hereunder are being
acquired for such Investor's own account.
(a) Each Investor, severally and not jointly, represents and
warrants to, and covenants and agrees with, the Company that the Common Shares
being acquired by such Investor hereunder are being acquired for investment and
with no intention of distributing or reselling such Common Shares or any part
thereof or interest therein in any transaction which would be in violation of
the securities laws of the United States or any state, without prejudice,
however, to an Investor's right, subject to the provisions of this Agreement and
the Registration Rights Agreement, at all times to sell or otherwise dispose of
all or any part of such Common
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Shares under an effective registration statement under the Securities Act and
other applicable state securities laws or under an exemption from such
registration requirements, and subject, nevertheless, to the disposition of an
Investor's property being at all times within such Investor's control. Each
Investor, severally and not jointly, further represents and warrants to the
Company that such Investor has no present agreement, understanding, plan or
intent to transfer the Common Shares to be purchased by such Investor, or any
part thereof or interest therein, to any transferee.
Section 4.4 Transfer Restrictions. If an Investor should decide to
dispose of any of the Common Shares, such Investor understands and agrees that
such Investor may do so only pursuant to an effective registration statement
under the Securities Act or as set forth below: (i) to the Company, (ii) to any
person reasonably believed by such Investor to be a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in compliance with
Rule 144A under the Securities Act, (iii) pursuant to an exemption from
registration set forth in Rule 144 under the Securities Act, (iv) to any person
who is reasonably believed by such Investor to be an "accredited investor" (as
defined in Rule 501(a) under the Securities Act) and who, prior to such
transfer, furnishes to the Investor and the Company a signed letter confirming
such Investor's status as an accredited investor and agreeing to the
restrictions on transfer of the Common Shares set forth in this Agreement or (v)
to any Affiliate (as such term is defined in Rule 144 under the Securities Act)
of such Investor pursuant to an applicable exemption under the Securities Act.
In connection with any transfer of any Common Shares other than (i) any transfer
pursuant to an effective registration statement or (ii) any transfer to a
qualified institutional buyer, the Company may require that the transferor of
any such Common Shares provide to the Company an opinion of counsel selected by
the transferor, which counsel shall be and the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such Common Shares under the
Securities Act or any state securities laws. In connection with any transfer
pursuant to clause (ii) above, the Company may request reasonable certification
as to the status of the transferor's transferee as a qualified institutional
buyer.
Section 4.5 No Conflict with Other Instruments; No Approvals Required
Except as Have Been Obtained.
(a) Neither the execution and delivery of this Agreement or
the Registration Rights Agreement, nor the consummation of the transactions
contemplated hereby or thereby, nor compliance by the Investor with any of the
provisions hereof or thereof shall (i) constitute or result in a breach of any
term, condition or provision of, or constitute a default under, or give rise to
any right of termination, cancellation or acceleration with respect to, or
result in the creation of any lien, charge or encumbrance upon any property or
asset of such Investor pursuant to, any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation, or (ii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to such
Investor, except for such violations, rights, conflicts, breaches, creations or
defaults which, either individually or in the aggregate, will not have a
Material Adverse Effect on such Investor or adversely affect such Investor's
right or ability to perform this Agreement or the Registration Rights Agreement.
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(b) No consent, approval or authorization of, or declaration,
notice (except as previously disclosed in writing to the Company prior to the
date hereof), filing or registration with, any governmental or regulatory
authority, or any other person, is required to be made or obtained by the
Investor in connection with the execution and delivery of this Agreement by the
Investor or the consummation by the Investor of the transactions contemplated
hereby.
Section 4.6 Investor Awareness. Each Investor acknowledges, agrees and
is aware that:
(i) an investment in the Common Shares involves a high
degree of risk, and such Investor may lose the entire amount of such
Investor's investment;
(ii) the Common Shares have not been registered under the
Securities Act or under the securities laws of any other jurisdiction,
and, except as provided in the Registration Rights Agreement, the
Company is under no obligation to, and currently does not intend to,
register or qualify the Common Shares for resale by such Investor or
assist such Investor in complying with any exemption under the
Securities Act or the securities laws of any other jurisdiction; an
offer or sale of Common Shares by such Investor in the absence of
registration under the Securities Act will require the availability of
an exemption thereunder; a restrictive legend in substantially the form
set forth in Section 7.1 hereof shall be placed on the certificates
representing the Common Shares; and a notation shall be made in the
appropriate records of the Company and its transfer agent indicating
that the Common Shares are subject to restrictions on transfer;
(iii) such Investor shall hold the Common Shares subject to,
and shall have voting rights with respect to the Common Shares as
specified in, the Certificate of Incorporation and Bylaws of the
Company, as the same may be amended from time to time; and
(iv) the Common Shares have not been approved or disapproved
by the SEC, any state securities commission or other regulatory
authority, nor have any of the foregoing authorities passed upon or
endorsed the merits of the Company's offer to sell the Common Shares or
the accuracy or adequacy of the Company's disclosures contained in this
Agreement or in the Other Documents (as such term is defined in Section
4.8 hereof).
Section 4.7 Accredited Investor. Each Investor qualifies as an
"accredited investor" within the meaning of Rule 501 under the Securities Act,
being:
(i) a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or other institution as defined
in Section (3)(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; a broker dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934; an insurance
company as defined in Section 2(13) of the Securities Act; an
investment company registered under the Investment Company Act of 1940
or a
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business development company as defined in Section 2(a)(48) of that
Act; a Small Business Investment Company licensed by the U. S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; a plan established and maintained by a
state, its political subdivisions, or an agency or instrumentality of
such state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of U.S. $5,000,000;
an employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a
plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has
total assets in excess of U.S. $5,000,000 or, if a self-directed plan,
with investment decisions made solely by persons that are accredited
investors;
(ii) a private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
(iii) an organization described in Section 501(c)(3) of the
Internal Revenue Code, or a corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose of
acquiring any Common Shares, with total assets in excess of U.S.
$5,000,000;
(iv) a director or executive officer of the Company;
(v) a natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his purchase
exceeds U.S. $1,000,000;
(vi) a natural person who had an individual income in excess
of U.S. $200,000 in each of the two most recent years or joint income
with that person's spouse in excess of U.S. $300,000 in each of those
years and has a reasonable expectation of reaching the same income
level in the current year;
(vii) a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring any Common Shares, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) under the Securities Act; or
(viii) an entity in which all of the equity owners are
accredited investors pursuant to any of the foregoing subsections
(i)-(vii).
Section 4.8 Receipt of Information, Access to Information. Each
Investor:
(i) has had the opportunity to review each and every
document filed by the Company with the SEC which such Investor deems
relevant to such Investor's purchase of Common Shares, and has been
furnished with the Registration Rights Agreement, the Escrow Agreement
and any other documents
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that the Investor may have from time to time requested of the Company
(collectively, the "Other Documents"), and such Investor has carefully
read such Other Documents and understands and has evaluated the risks
of a purchase of the Common Shares;
(ii) has been given the opportunity to ask questions of, and
receive answers from, the Company concerning any and all matters
pertaining to the purchase of Common Shares, has been given the
opportunity to obtain such additional information necessary to evaluate
the merits and risks of a purchase of the Common Shares to the extent
the Company possesses such information or can acquire such information
without unreasonable effort or expense, and has received all documents
and information that such Investor has requested relating to an
investment in the Company;
(iii) has not relied upon any representations or other
information (whether oral or written) from the Company, or its
directors, officers, employees or affiliates, or from any other
persons, other than the representations contained in this Agreement and
the information contained in the Other Documents;
(iv) has carefully considered and has, to the extent such
Investor believes such discussion necessary, discussed with such
Investor's professional legal, financial and tax adviser(s), the
suitability of an investment in the Company for such Investor's
particular financial and tax situation and has determined that the
Common Shares are a suitable investment for such Investor; and
(v) acknowledges and agrees that such Investor (A) has such
knowledge and experience in financial and business matters that such
Investor is capable of evaluating the merits and risks of an investment
in Common Shares, (B) is aware of the matters described in Section 4.6,
(C) has received and evaluated the information described in this
Section 4.8, and (D) is making an independent decision to invest in the
Common Shares.
Section 4.9 Cash Funds. Such Investor is not insolvent and has
sufficient cash funds on hand to purchase the Common Shares on terms and
conditions contained in this Agreement and will have such funds available to
effect the purchase of such Common Shares on the Closing Date.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF THE INVESTORS
The obligation of each Investor to purchase Common Shares under this
Agreement is subject to the satisfaction or waiver on or prior to the Closing
Date of each of the following conditions:
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Section 5.1 Accuracy of Representations and Warranties. All
representations and warranties of the Company contained herein shall be true in
all material respects on and as of the Closing Date as if made on and as of the
Closing Date.
Section 5.2 Company's Performance. Each of the covenants and
obligations that the Company is required to perform or to comply with pursuant
to this Agreement at or prior to the Closing must have been duly performed and
complied with in all material respects.
Section 5.3 Opinion of Company's Counsel. The Investors shall have
received from Xxxxxxx Xxxxxxxxx Young & Xxxxxxx, LLC, counsel to the Company, an
opinion addressed to the Investors, dated as of the Closing Date, the form and
substance of which shall be acceptable to the Investors.
Section 5.4 Employment Agreements. Simultaneously with the Closing, C.
Xxxxxxx Xxxxxx ("Xxxxxx"), C. Xxxxxx Xxxxx ("Xxxxx") and Xxxx X. Xxxxxxx
("Xxxxxxx") shall be duly elected as Chief Executive Officer, President and
Chief Operating Officer, respectively, of the Company and its subsidiary, The
Bank, and shall enter into employment agreements with the Company in connection
therewith.
Section 5.5 Appointment of Director. Simultaneously with the Closing,
Xxxxxx shall be duly appointed to the Company's Board of Directors.
Section 5.6 Secretary's Certificate. The Investors shall have received
a duly executed certificate of the Company's Secretary, dated as of the Closing
Date, (i) certifying, as complete and accurate as of the Closing Date, attached
copies of Company's Certificate of Incorporation and Bylaws, and (ii) certifying
and attaching all requisite resolutions of the Company's Board of Directors, and
committees thereof, approving the execution and delivery of this Agreement and
the consummation of the transactions contemplated in this Agreement.
Section 5.7 Qualifications. All authorizations, approvals or permits of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the consummation of any of the
transactions contemplated by this Agreement, if any, shall have been duly
obtained and shall be effective on and as of the Closing Date.
Section 5.8 Orders, Decrees or Injunctions. Neither the Company nor any
of its subsidiaries, nor any of the Investors, shall be subject to any order,
decree or injunction by a court of competent jurisdiction which prevents the
consummation of any of the transactions contemplated by this Agreement.
Section 5.9 Statutes, Rules or Regulations. No statute, rule or
regulation shall have been enacted by the government (or any governmental
agency) of the United States or any state, municipality or other political
subdivision thereof that makes the consummation of any of the transactions
contemplated by this Agreement illegal.
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ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to issue and sell the Common Shares under
this Agreement is subject to the satisfaction or waiver on or prior to the
Closing Date of each of the following conditions:
Section 6.1 Accuracy of Representations and Warranties. All
representations and warranties of each Investor contained herein shall be true
in all material respects on and as of the Closing Date as if made on and as of
the Closing Date.
Section 6.2 Investors' Performance. Each of the covenants and
obligations that each of the Investors is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing must have been duly
performed and complied with in all material respects.
Section 6.3 Employment Agreements. Simultaneously with the Closing,
Xxxxxx, Xxxxx and Xxxxxxx shall be duly elected as Chief Executive Officer,
President and Chief Operating Officer, respectively, of the Company and its
subsidiary, The Bank, and shall enter into employment agreements with the
Company in connection therewith.
Section 6.4 Appointment of Director. Simultaneously with the Closing,
Xxxxxx shall be duly appointed to the Company's Board of Directors.
Section 6.5 Separation Agreements. Simultaneously with the Closing,
each of Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, Xx. shall enter into a separation
agreement with the Company.
Section 6.6 Standstill Agreements. Simultaneously with the Closing,
each of X. Xxxxxxx XxXxxxxx, Jr. and Xxxxx X. Xxxxxx shall enter into a
standstill agreement with the Company.
Section 6.7 Opinion of Company's Counsel. The Company shall have
received from Xxxxxxx Xxxxxxxxx Xxxxx & Xxxxxxx, LLC, counsel to the Company, an
opinion addressed to the Company, dated as of the Closing Date, the form and
substance of which shall be acceptable to the Company.
Section 6.8 Opinion of Company's Regulatory Counsel. The Company shall
have received from Miller, Hamilton, Xxxxxx & Xxxx, LLC, regulatory counsel to
the Company, an opinion addressed to the Company, dated as of the Closing Date,
the form and substance of which shall be acceptable to the Company.
Section 6.9 Blue Sky Memorandum. The Company shall have received from
Xxxxxxx Xxxxxxxxx Young & Xxxxxxx, LLC, counsel to the Company, a blue sky
memorandum addressed to the Company, dated as of the Closing Date, the form and
substance of which shall be acceptable to the Company.
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Section 6.10 Legal Investment. The purchase of the Common Shares to be
purchased by each of the Investors hereunder shall be legally permitted by all
laws and regulations to which each such Investor and the Company are subject.
Section 6.11 Qualifications. All authorizations, approvals or permits
of any governmental authority or regulatory body of the United States or of any
state that are required in connection with the consummation of any of the
transactions contemplated by this Agreement, if any, shall have been duly
obtained and shall be effective on and as of the Closing Date.
Section 6.12 Orders, Decrees or Injunctions. Neither the Company nor
any of its subsidiaries, nor any of the Investors, shall be subject to any
order, decree or injunction by a court of competent jurisdiction which prevents
the consummation of any of the transactions contemplated by this Agreement.
Section 6.13 Statutes, Rules or Regulations. No statute, rule or
regulation shall have been enacted by the government (or any governmental
agency) of the United States or any state, municipality or other political
subdivision thereof that makes the consummation of any of the transactions
contemplated by this Agreement illegal.
ARTICLE VII
RESTRICTIONS ON TRANSFER
The Common Shares shall not be transferable except upon the conditions
specified in this Article VII, which are intended to ensure compliance with the
provisions of the Securities Act in respect of the transfer of any Common
Shares.
Section 7.1 Restrictive Legends. In addition to any other legend
required by applicable law, each certificate representing Common Shares shall
(unless otherwise permitted by the provisions of this Article VII) be stamped or
otherwise imprinted with a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, OFFERED, PLEDGED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a) UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER THEREOF OR ANY
SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE COMPANY A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
WHICH
12
LETTER CAN BE OBTAINED FROM THE COMPANY), (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT WITH RESPECT THERETO, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT."
Section 7.2 Notice of Proposed Transfers.
(a) The holder of Common Shares bearing a restrictive legend
set forth in Section 7.1 above ("Restricted Securities"), by acceptance thereof,
agrees that, unless such Restricted Securities have been registered or qualified
under the Securities Act and applicable state securities laws, prior to any
transfer or attempted transfer of such Restricted Securities, in whole or in
part, such holder will give the Company (a) written notice describing the
proposed transfer of such Restricted Securities in reasonable detail, (b)
certification that the proposed transferee of such Restricted Securities is
either a "qualified institutional buyer" within the meaning of Rule 144A under
the Securities Act or an "accredited investor" within the meaning of Rule 501
under the Securities Act, (c) such other information about the proposed transfer
of such Restricted Securities or the proposed transferee of such Restricted
Securities as the Company may request and (d) in connection with any transfer of
any Restricted Securities other than (i) any transfer pursuant to an effective
registration statement or (ii) any transfer to a qualified institutional buyer,
the Company may require that the transferor of any such Restricted Securities
provide to the Company an opinion of counsel selected by the transferor (which
may include in-house counsel of a transferor), which counsel shall be and the
form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration of such
Restricted Securities under the Securities Act or any state securities laws. In
addition, if the holder of the Restricted Securities delivers to the Company an
opinion of counsel that subsequent transfers of such Restricted Securities will
not require registration under the Securities Act, the Company will cause the
transfer agent promptly after such contemplated transfer to deliver new
certificates for such Restricted Securities that do not bear the legend set
forth in Section 7.1 above. If the foregoing conditions entitling the holder to
effect a proposed transfer of such Restricted Securities without registration
under the Securities Act have not been satisfied, the holder shall not transfer
the Restricted Securities, and the Company will cause the transfer agent not to
transfer any Restricted Securities on its books or issue any certificates
representing such Restricted Securities. Any purported transfer not in
accordance with the terms hereof shall be void. The restrictions imposed by this
Section 7.2 upon the transferability of any particular Restricted Securities
shall cease and terminate when such Restricted Securities have been sold
pursuant to an effective registration statement under the Securities Act or
transferred pursuant to Rule 144 promulgated under the Securities Act. The
holder of any Restricted Securities as to which such restrictions shall have
terminated shall be
13
entitled to receive from the Company, without expense, a new certificate
representing Common Shares that does not bear the restrictive legend set forth
above and does not contain any other reference to the restrictions imposed by
this Section 7.2. As used in this Section 7.2, the term "transfer" encompasses
any sale, transfer, pledge or other disposition of any Common Shares referred to
herein.
(b) No Restricted Security may be transferred to any person
unless the transferee thereof executes a written agreement, in form and
substance reasonably acceptable to the Company, agreeing to be bound by the
provisions of this Article VII.
ARTICLE VIII
AGREEMENTS AND CONSENTS OF INVESTORS
Each Investor agrees with the Company that:
(a) notwithstanding anything to the contrary contained or
implied herein, the Company shall not be obligated to issue to the Investors in
the aggregate, any Common Shares in an amount which would equal or exceed five
percent (5%) of the total voting power of the Company upon consummation of the
transactions contemplated hereby;
(b) the Company may, in its sole discretion, decline to issue
any of the Common Shares to any Investor if, in the reasonable opinion of the
Company, such Investor is required to obtain prior clearance or approval of such
transaction from any governmental bank regulatory authority and satisfactory
evidence of such approval or clearance has not been presented to the Company by
the Closing Date; and
(c) the Company may rely upon and disclose the terms of this
Agreement; each Investor consents to disclosure concerning such Investor in any
filing or disclosures of the Company required by law or regulation.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Indemnification by the Company. The Company (for purposes
of this Section 9.1 and, to the extent applicable, Section 9.3, the
"Indemnitor"), shall indemnify, defend and hold each of the Investors (to the
extent applicable, each of the foregoing being herein referred to for purposes
of Section 9.3 as an "Indemnified Person"), harmless from and against any and
all liabilities, losses, claims, damages, suits, costs, deficiencies and
expenses (including reasonable attorneys' fees and disbursements through appeal)
arising from, by reason of or resulting from any (i) breach by the Indemnitor of
any representation, warranty, agreement or covenant contained in this Agreement
and each document or other instrument furnished or to be furnished by the
Indemnitor hereunder, and (ii) claim by any person for brokerage or finder's
fees
14
or commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with the Indemnitor in connection
with any of the transactions contemplated by this Agreement.
Section 9.2 Indemnification by the Investors. Each of the Investors
(for purposes of this Section 9.2 and, to the extent applicable, Section 9.3,
each of the foregoing being herein referred to as an "Indemnitor"), shall
indemnify, defend and hold the Company and each of the Company's officers,
directors, agents, employees and shareholders (to the extent applicable, each of
the foregoing being herein referred to for purposes of Section 9.3 as an
"Indemnified Person"), harmless from against any and all liabilities, losses,
claims, damages, actions, suits, costs, deficiencies and expenses (including
reasonable attorneys' fees and disbursements through appeal) arising from, by
reason of or resulting from any (i) breach by the Indemnitor of any
representation, warranty, agreement or covenant contained in this Agreement and
each document or other instrument furnished or to be furnished by the Indemnitor
hereunder, and (ii) claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with any of the Indemnitors in
connection with any of the transactions contemplated by this Agreement.
Section 9.3 Indemnification Procedure. Within 60 days after an
Indemnified Person receives written notice of the commencement of any action or
other proceeding in respect of which indemnification or reimbursement may be
sought hereunder, or within such lesser time as may be provided by law for the
defense of such action or other proceeding, such Indemnified Person shall notify
the Indemnitor thereof. If any such action or other proceeding shall be brought
against any Indemnified Person, the Indemnitor shall, upon written notice, given
within a reasonable time following receipt by the Indemnitor of such notice from
the Indemnified Person, be entitled to assume the defense of such action or
other proceeding with counsel chosen by the Indemnitor and reasonably
satisfactory to the Indemnified Person; provided, however, that any Indemnified
Person may at his or its, as the case may be, own expense retain separate
counsel to participate in such defense. Notwithstanding the foregoing, an
Indemnified Person shall have the right to employ separate counsel at the
Indemnitor's expense and to control its own defense of such action or proceeding
if, in the reasonable opinion of counsel to such Indemnified Person, (i) there
are or may be legal defenses available to such Indemnified Person or to other
Indemnified Persons that are different from or additional to those available to
the Indemnitor and which could not be adequately advanced by counsel chosen by
the Indemnitor, or (ii) a conflict or potential conflict exists between the
Indemnitor and such Indemnified Person that would make such separate
representation advisable; provided, however, that in no event shall the
Indemnitor be required to pay fees and expenses hereunder for more than one firm
of attorneys in a jurisdiction in any one action or other proceeding or group of
related actions or other proceedings. The Indemnitor shall not, without the
prior written consent of any Indemnified Person, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action or other proceeding to which such Indemnified Person is a party unless
such settlement, compromise or consent includes an unconditional release of such
Indemnified Person from all liability arising or potentially arising from or by
reason of such claim, action or other proceeding.
15
ARTICLE X
MISCELLANEOUS
Section 10.1 Termination of Agreement. This Agreement may be terminated
and the transactions contemplated herein abandoned by the written agreement of
the Company and each Investor.
Section 10.2 Entire Agreement. This Agreement (including any Schedules
and Exhibits hereto) constitutes the entire agreement among the parties hereto
and supersedes all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof, except
with respect to the Registration Rights Agreement and the Escrow Agreement.
Section 10.3 Severability. Any provision of this Agreement that is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, unenforceability or legality of
such provision in any other jurisdiction.
Section 10.4 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto, and their respective successors, legal representatives and
permitted assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 10.5 Assignability. This Agreement shall not be assignable by
any Investor without the prior written consent of the Company, which consent may
be withheld in the sole and complete discretion of the Company.
Section 10.6 Amendment; Waiver. No provision of this Agreement may be
amended, waived or otherwise modified except by an instrument in writing
executed by the parties hereto.
Section 10.7 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Section 10.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
Section 10.9 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of Alabama.
Section 10.10 Notices and Payments. All notices, requests, demands and
other communications hereunder shall be in writing and, except to the extent
otherwise provided in
16
this Agreement, shall be deemed to have been duly given if delivered by same day
or next day courier or mailed, first class postage prepaid, or transmitted by
telegram, telex or facsimile (i) if to an Investor, at such Investor's address
appearing below such Investor's name on the signature page hereto or at any
other address such Investor may have provided in writing to the Company and (ii)
if to the Company, at The Banc Corporation, 00 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: General Counsel, facsimile: (000) 000-0000, or such
other address as the Company may have furnished to the Investors in writing. A
notice hereunder shall be deemed to have been given on the day such notice is
sent or transmitted, provided, however, that if such notice is sent by next-day
courier it shall be deemed to have been given the day following sending and, if
by registered mail, five days following sending.
Section 10.11 Survival. Each of the representations, warranties,
covenants and agreements made by the Company and each of the Investors pursuant
to this Agreement shall survive the execution and delivery of this Agreement and
the Closing.
Section 10.12 Further Assurances. The parties hereto do hereby agree
(i) to furnish upon request to each other such further information, (ii) to
execute and deliver to each other such other documents and (iii) to do such
other acts and things, all as each of the other parties hereto may reasonably
request for the purpose of carrying out the intent of this Agreement.
Section 10.13 Fees and Expenses. The parties hereto shall each bear
their own respective costs and expenses in connection with the transactions
contemplated hereby.
Section 10.14 No Rule of Construction. The parties hereto acknowledge that this
Agreement was mutually prepared and that all parties have read and negotiated
the language used in this Agreement. The parties agree that, because all parties
participated in negotiating and drafting this Agreement, no rule of construction
shall apply to this Agreement which construes ambiguous language in favor of or
against any party by reason of that party's role in drafting this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
The Banc Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Chairman of the Special Negotiating
Committee of the Board of Directors
of The Banc Corporation
----------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ C. Xxxxxxx Xxxxxx
------------------------------------------------
C. Xxxxxxx Xxxxxx
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 12,239
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Colonial Bank, N.A., Trustee,
XXX of C. Xxxxxxx Xxxxxx
By:
------------------------------------------
Name:
------------------------------------------
Its:
------------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 132,190
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Miller, Hamilton, Xxxxxx & Xxxx, LLC,
escrow agent FBO C. Xxxxxxx Xxxxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------------
Its: Member
------------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 120,257
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Xxxxx Xxxxxxxx
------------------------------------------------
Xxxxx Xxxxxxxx
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
Number of Common Shares to be Purchased: 12,239
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Forest Hill Select Fund, LP
By: /s/ Xxxx X. Xxx
------------------------------------------
Name: Xxxx X. Xxx
------------------------------------------
Its: Manager/Mg. GP
------------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 396,266
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Forest Hill Offshore, Ltd.
By: /s/ Xxxx X. Xxx
------------------------------------------
Name: Xxxx X. Xxx
------------------------------------------
Its: Manager/Mg. GP
------------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 32,129
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ Xxxx X. Xxxxxxx
------------------------------------------------
Xxxx X. Xxxxxxx
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
Number of Common Shares to be Purchased: 61,199
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Xxxxx Xxxxx
------------------------------------------------
Xxxxx Xxxxx
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
Number of Common Shares to be Purchased: 6,119
-----
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
/s/ C. Xxxxxx Xxxxx
------------------------------------------------
C. Xxxxxx Xxxxx
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
Number of Common Shares to be Purchased: 13,288
-------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Miller, Hamilton, Xxxxxx & Xxxx, LLC,
escrow agent FBO C. Xxxxxx Xxxxx
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------------
Its: Member
------------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
Number of Common Shares to be Purchased: 139,710
-------
