VALUE APPRECIATION INSTRUMENT AGREEMENT by and between BOND STREET HOLDINGS, INC. and FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER OF FIRST PEOPLES BANK, PORT SAINT LUCIE, FLORIDA Dated as of July 15, 2011
Exhibit 10.25
EXECUTION COPY
by and between
BOND STREET HOLDINGS, INC.
and
FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER OF FIRST PEOPLES BANK,
PORT SAINT LUCIE, FLORIDA
RECEIVER OF FIRST PEOPLES BANK,
PORT SAINT LUCIE, FLORIDA
Dated as of July 15, 2011
This VALUE APPRECIATION AGREEMENT (this “Agreement”), dated as of July 15, 2011, is by
and between Bond Street Holdings, Inc., a Delaware corporation (the “Company”), and the
Federal Deposit Insurance Corporation, in its capacity as receiver (the “FDIC”).
RECITALS
WHEREAS, as of July 15, 2011, FDIC and Premier American Bank, National Association, a wholly
owned subsidiary of the Company (the “Buyer”) entered into that certain Purchase and
Assumption Agreement, dated as of the date hereof (as amended from time to time in accordance with
its terms, the “P&A Agreement”), pursuant to which Buyer purchased and assumed certain
assets, deposits and certain other liabilities of First Peoples Bank, Port Saint Lucie, Florida
(the “Failed Bank”) from FDIC; and
WHEREAS, pursuant to the bid of the Company and the Buyer to acquire the Failed Bank, FDIC is
entitled to receive a value appreciation payment in respect of fifty thousand (50,000) Units as
provided in, and subject to the terms and conditions of, this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meanings indicated:
“Agreement” shall have the meaning set forth in the preamble.
“Business Day” means any day commencing at 9 A.M., New York City time and ending at 5
P.M., New York City Time, that is not a Saturday or Sunday or a legal holiday on which banks are
authorized or required by law to be closed.
“Buyer” shall have the meaning set forth in the recitals.
“Company” shall have the meaning set forth in the recitals.
“Determination Price” shall mean, in respect of each Unit:
(i) if a Public Float Event occurs, the Company’s two (2) day
volume weighted average price (“VWAP”) per Unit as of the date of the
Exercise Notice;
(ii) if a Sale Event occurs, the value of the consideration
received per Unit upon the closing of such Sale Event; or
(iii) if the Alternative Consideration Fee is assessed, the
1
value per Unit is equal to the product of (x) the Company’s Tangible Book
Value per common share as of the most recent quarter prior to the expiration
of the term and (y) the prevailing average price to tangible book multiple of
the components underlying the Nasdaq Bank Index at such date.
“Exercise Notice” shall have the meaning set forth in Section 3(d).
“Exercise Period” shall have the meaning set forth in Section 3(c).
“Exercise Price” means $19.92 per Unit subject to adjustment pursuant to
Section 2(b).
“Failed Bank” shall have the meaning set forth in the preamble.
“FDIC” shall have the meaning set forth in the preamble.
“Initial Exercise Date” shall have the meaning set forth in Section 3(c).
“Initial Public Offering” shall mean the first underwritten public offering of common
stock of the Company after which it will both (i) trade on a national securities exchange (which
includes, but is not limited to, NYSE, NASDAQ and NYSE Amex Equities) and (ii) have a post-offering
public float in excess of Fifty Million United States Dollars ($50,000,000).
“Public Float Event” shall mean the increase of the Company’s public float to more
than Fifty Million United States Dollars ($50,000,000) for a consecutive 30-trading-day period by
means of either (i) an Initial Public Offering or (ii) appreciation of public market price of
shares of the Company.
“Sale Event” shall mean a business combination in which the Company is designated as
the selling entity or a disposition of all or substantially all of the Company’s assets.
“Settlement Price” means the Determination Price minus the Exercise Price.
“Tangible Book Value” shall mean the quotient of the Company’s tangible common
equity divided by the Company’s total common shares outstanding.
“Term” shall mean the period commencing on the Initial Exercise Date and ending
on the earlier of (i) the first anniversary of the Trigger Event or (ii) July 15, 2013.
“Transfer” shall mean any transfer, sale, exchange, assignment, pledge, or
hypothecation of, creation of a lien or other encumbrance or security interest in or upon, or other
disposition of, the VAI Right; provided, that such a Transfer shall be made pursuant to
Section 4, and the term “Transferred” shall have the meaning correlative to the foregoing.
“Trigger Event” shall have the meaning set forth in Section 3(a).
“Trigger Notice” shall have the meaning set forth in Section 3(b).
2
“Unit” shall mean an accounting device which mirrors one share of the
Company’s common stock.
“VAI Payment” shall have the meaning set forth in Section 2(a).
“VAI Right” shall have the meaning set forth in Section 2(a).
“VWAP” means the Volume Weighted Average Price displayed under the heading “Bloomberg
VWAP” on the Bloomberg Page for the Company (or its equivalent successor page if such page is not
available) for the two (2) trading days immediately prior to the day of FDIC’s delivery of the
Exercise Notice to the Company.
2. VAI Right.
(a) Upon the occurrence of a Trigger Event (as defined below), FDIC will have the right (the
“VAI Right”), which may be exercised, in whole or in part, at any time during the Term in
accordance with the provisions of Section 3, to receive a payment in cash or in stock (the “VAI
Payment”) in respect of fifty thousand (50,000) Units, in the aggregate, as follows: (1) if
payment in cash is elected, the VAI Payment shall be equal to the product of (i)the Settlement
Price per Unit and (ii) the number of Units in respect of which the VAI Right is being exercised as
set forth in the applicable Exercise Notice, or (2) if payment in stock is elected, the VAI Payment
shall be the number of shares of the Company’s common stock equal to (X) the product of (i) the
number of Units in respect of which the VAI Right is being exercised as set forth in the applicable
Exercise Notice and (ii) the Settlement Price per Unit, divided by (Y) the Determination Price as
defined in clause (i) or clause (ii) of the definition of “Determination Price.”
(b) Adjustments for Stock Splits, etc. The number of Units to which the VAI Right
relates shall be appropriately adjusted, as determined by the managing board of the Company, to
reflect fully the effect of any stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Units), reclassification, reorganization,
recapitalization or similar transaction occurring after the date hereof and prior to the expiration
of the Term.
3. Exercise of VAI Right.
(a) Conditions to Exercise. The VAI Right shall become exercisable, in whole or in
part, only upon the earlier of (i) the occurrence of a Public Float Event, or (ii) the closing of a
Sale Event (any such event in clause (i) or (ii), a “Trigger Event”).
(b) Trigger Notice. Within five (5) Business Days of the occurrence of a Trigger
Event, the Company shall send FDIC a written notice stating that a Trigger Event has occurred (a
“Trigger Notice”). Such Trigger Notice shall be delivered pursuant to Section 7 below.
(c) Exercise Period. The VAI Right may be exercised in whole or in part at any time
commencing on the delivery date of the Trigger Notice (the “Initial Exercise Date”) and
3
continuing until the expiration of the Term at which time the VAI Right or any unexercised
portion thereof shall be extinguished.
(d) Manner of Exercise. In order to exercise the VAI Right, FDIC shall deliver to the
Company a written notice in the form of Exhibit A hereto (the “Exercise Notice”), at any
time on or after the date on which the VAI Right becomes exercisable as provided in Section 3(c).
Such Exercise Notice shall be delivered pursuant to Section 7 below.
(e) Settlement of Right; Payment by Company. After receipt of the Exercise Notice in
the manner set forth above, on the first Business Day following the Company’s receipt of the
Exercise Notice, the Company shall deliver to the FDIC or any other holder of the VAI Right as a
result of a Transfer, the VAI Payment in the form that such holder may elect pursuant to Section
2(a).
(f) Alternative Consideration Fee. In the event that a Trigger Event does not occur
prior to the expiration of the Term or a Trigger Event occurs but the FDIC does not exercise fully
the VAI Right, then upon the expiration of the Term the Company shall pay to the FDIC a cash fee
equal to the product of (x) the number of unexercised Units and (y) the Settlement Price per Unit.
For purposes of this Section 3(f), the Settlement Price shall be calculated based on a
Determination Price as defined in clause (iii) of the definition of “Determination Price.”
4. Transfers Prior to the Expiration of the Term. FDIC may Transfer its right, title
and interest in and to all or part of the VAI Right without the consent of the Company (provided
that FDIC shall notify the Company pursuant to Section 7 below prior to any such Transfer) at any
time prior to the expiration of the Term, so long as such Transfer does not violate any applicable
law, rule or regulation.
5. Binding Effect. This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the parties hereto and their respective heirs, personal representatives,
legatees, successors and permitted assigns.
6. No Impairment. The Company will not, by amendment of its operating agreement or
through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Agreement, but will at all times in good faith assist in the carrying
out of all such terms and in the taking of all such action as may be necessary or appropriate in
order to protect the rights of FDIC against impairment.
7. Notices. Any notice, demand or request which may be permitted, required or desired
to be given in connection with herewith shall be given in writing and directed to the parties
hereto as follows:
| if to FDIC, to: | Manager, Special Programs | |||
| Division of Resolutions and Receiverships | ||||
| Federal Deposit Insurance Corporation | ||||
| 000 00xx Xxxxxx, XX (Room F-7028) | ||||
| Xxxxxxxxxx, X.X. 00000-0000 |
4
| Attention: Xxxxxx Xxxxxxx | ||||
| E-mail Address: XXxxxxxx@xxxx.xxx | ||||
| with a copy to: | Senior Counsel | |||
| FDIC Legal Division | ||||
| Federal Deposit Insurance Corporation | ||||
| Special Issues Xxxx | ||||
| 0000 Xxxxxxx Xxxxx (Xxxx E-7056) | ||||
| Xxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxx Xxxxxx | ||||
| E-mail Address: XXxxxxx@xxxx.xxx | ||||
| if to the Company, to: | President and COO | |||
| Bond Street Holdings, Inc. | ||||
| 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Attention: Xxxx X. Xxxxxx | ||||
| Fax: (000) 000-0000 | ||||
| Phone: (000) 000-0000 | ||||
| E-Mail Address: xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx |
Notices shall be deemed properly delivered and received when delivered to both the primary notice
party and copied parties (i) if personally delivered, upon receipt or refusal to accept delivery,
(ii) if sent by a commercial overnight courier for delivery on the next Business Day, on the first
Business Day after deposit with such courier service (or the third Business Day if sent to an
address not in the United States), or (iii) if sent by registered or certified mail, five (5) days
after deposit thereof in the U.S. mail. Any party may change its address for delivery of notices by
properly notifying the others pursuant to this Section 7. For the avoidance of doubt, e-mail
notices and notices sent via facsimile shall not be deemed proper delivery for purposes of this
Agreement.
8. Amendment. This Agreement may be modified or amended only by an instrument in
writing, duly executed by the Company on the one hand, and the FDIC, on the other hand.
9. Governing Law. This Agreement shall be governed by and construed in accordance with
the federal law of the United States if and to the extent such law is applicable, and, insofar as
there may be no applicable federal law, shall be governed in accordance with the laws of the State
of New York. Each of the Company and FDIC agrees (a) to submit to the exclusive jurisdiction and
venue of the federal courts located in the State of New York for any civil action, suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby,
and (b) that notice may be served upon the Company and FDIC at the addresses in Section 7 above. To
the extent permitted by applicable law, each of the Company and FDIC hereby unconditionally waives
trial by jury in any civil legal action or proceeding relating to this Agreement or the
transactions contemplated hereby.
5
10. Severability. If any provision of this Agreement is found by a court of
competent jurisdiction to be invalid or unenforceable, such provision shall not affect the other
provisions, but such invalid or unenforceable provision shall be deemed modified to the extent
necessary to render it valid or enforceable, preserving to the fullest extent permissible the
intent of the parties set forth herein.
11. Headings. The headings in this Agreement are inserted for convenience only and
shall not constitute a part hereof.
12. Counterparts; Facsimile. For the convenience of the parties, any number of
counterparts hereof may be executed, each such executed counterpart shall be deemed an original,
and all such counterparts together shall constitute one and the same instrument. Facsimile
transmission or other electronic transmission of any signed original counterpart and/or
retransmission of any signed facsimile transmission or other electronic transmission shall be
deemed the same as the delivery of an original.
13. Entire Agreement. This Agreement and the P&A Agreement (including the exhibits and
schedules of each of the foregoing) contain the entire understanding of the parties hereto with
respect to the subject matter hereof.
[Remainder of page intentionally left blank]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
| BOND STREET HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER OF FIRST PEOPLES BANK, PORT SAINT LUCIE, FLORIDA |
||||
| By: | /s/ Xxxx Xxxxx Xxxxxx | |||
| Name: | Xxxx Xxxxx Xxxxxx | |||
| Title: | Receiver In Charge | |||
[Signature Page to Value Appreciation Instrument Agreement]
Exhibit A
FORM OF EXERCISE NOTICE
To: Bond Street Holdings, Inc. (the “Company”):
The undersigned hereby gives notice pursuant to Section 3(d) of that certain Value
Appreciation Instrument Agreement by and between the Company and the undersigned of its election to
exercise its VAI Right, in whole or in part, such exercise to be consummated on the tenth business
day following delivery of this notice, all in accordance with the terms and provisions of the Value
Appreciation Instrument Agreement.
Number of Units to which this exercise applies:
| By: | ||||
| Name: | ||||
| Title: | ||||
