FIRST AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
Exhibit
10.2
CONFORMED
EXECUTION COPY
FIRST
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
This First Amendment to the Securities
Purchase Agreement (the “Amendment”) is entered into
effective as of February 16, 2010, by and among Cascade Bancorp, an Oregon
corporation, (the “Company”) and BOTC Holdings
LLC, a Delaware limited liability company (the “Investor”) 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
C. Recital C of the
Agreement is amended by deleting current Recital D in its
entirety and replacing it with the following new Recital
C:
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C. 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 (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) $40,000,000 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 Other Private Placements or Additional Investments,
against payment by the Investor of $40,000,000 (the “Purchase Price”) by wire
transfer of immediately available United States funds to a bank account
designated by the Company; provided, that if the
Purchased Shares would be equal to or greater than 25% of any class of Voting
Securities (as defined in the BHC Act) of the Company outstanding at such time
(assuming, for this purpose only, full conversion of all securities owned by
such Investor and its Affiliates that are convertible into or exercisable for
Voting Securities and no conversion by other holders of such convertible
securities), then Investor shall purchase the highest number of shares of Common
Stock at the Per Share Purchase Price (and the Purchase Price shall be reduced
accordingly) such that the Investor will not be deemed to own, control or have
the power to vote, for purposes of the BHC Act (as defined below) or the CBC Act
(as defined below) and the rules and regulations promulgated thereunder, 25% or
more of any class of Voting Securities (as defined in the BHC Act) of the
Company outstanding at such time (assuming, for this purpose only, full
conversion of all securities owned by such Investor and its Affiliates that are
convertible into or exercisable for Voting Securities and no conversion by other
holders of such convertible securities) or otherwise to be deemed to acquire
control of the Company for purposes of the BHC Act or any other federal or state
banking laws or regulations promulgated thereunder.
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(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)(vii) in its entirety and replacing it with the following new
Section
1.2(c)(1)(vii):
(vii)
the
Company shall have reimbursed the Investor for out-of-pocket fees and expenses
incurred by the Investor in connection with the transaction contemplated hereby
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 $1,591,017 in the aggregate, which amount
includes $1,391,017 incurred prior to the date of the Amendment to this
Agreement for which the Company shall have reimbursed the Investor $1,219,274
prior to the execution of the Amendment;
(d) Amendment to Subsection
1.2(c). The Agreement is amended by deleting current Sections
1.2(c)(1)(ix) and 1.2(c)(1)(x) each in
its entirety.
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:
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3.2 Expenses. Immediately
prior to the execution of this Amendment, the Company shall directly reimburse
the Investor for all out-of-pocket fees and expenses incurred prior to the
execution of this Amendment in 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 securities in the aggregate amount of $1,219,274
and Investor agrees to defer payment of fees incurred prior to the execution of
this Amendment in the amount of $171,743, which amount shall be paid in
accordance with subsection (i) below. 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 (i) fees
incurred prior to the execution of this Amendment, payment of which was deferred
by Investor, in the aggregate amount of $171,743 and (ii) all out-of-pocket fees
and expenses incurred in connection with due diligence efforts, the negotiation
and preparation of this Amendment and 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 Securities, in an aggregate amount not to exceed
$200,000. 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 4.6(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 this
Agreement.
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(c). The Agreement is amended by deleting current Section 5.1(c) in its
entirety and replacing it with the following new Section
5.1(c):
(c)
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;
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8. Addition of Section
4.12. The Agreement is amended by adding the following Section
4.12:
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.
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 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 and the
transactions contemplated hereby 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/
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Name: X.X.
Xxxxxx
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Title: EVP/CFO
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BOTC
HOLDINGS LLC
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By:
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/s/
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Authorized
Signatory
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