AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 1
This
Amendment No. 1 to the Stock Purchase Agreement, dated as of May 10, 2010, by
and between JACKSONVILLE BANCORP, INC., a Florida corporation (the “Company”), and CAPGEN
CAPITAL GROUP IV LP, a Delaware limited partnership (“CapGen”), and each of
the respective other investors set forth on the signature pages thereto (the
“Agreement”),
is dated as of September 20, 2010 (this “Amendment”).
The
parties desire to amend certain terms of the Agreement to reflect a change to
the amount and purchase price per share of the securities subject to the
Agreement.
The
parties therefore amend the Agreement as follows:
1. Defined Terms.
Capitalized terms used but not defined in this Amendment are as defined in the
Agreement.
2. Amendments to the
Introduction. The introduction to the Agreement is hereby amended by
changing “1,960,144 shares of common stock” to “2,684,144 shares of common
stock”, by changing “purchase price of $10.00 per share” to “purchase price of
$9.00 per share”, by changing “$10 million” to “$10,842,705” and by changing
“purchase price per share of $10.00” to “purchase price per share of
$9.00”.
3. Amendment to Section
1.03. Section 1.03 of the Agreement is hereby amended by changing “$10.00
per Purchased Share” to “$9.00 per Purchased Share”.
4. Amendments to Section
4.09. Section 4.09 of the Agreement is hereby amended by changing “$30
million” to “$35 million” and by changing “purchase price per share of $10.00”
to “purchase price per share of $9.00”.
5. Amendment to Section
6.09. Section 6.09 of the Agreement is hereby amended and restated to
read as follows:
“6.09 Information, Access and
Confidentiality.
“(a) From
the date hereof until the date following the Closing Date on which the Investor
Percentage Interest of an Investor (other than CapGen) is less than 5%, the
Company and the Subsidiaries will permit such Investor, whether or not such
Investor qualifies, or is intended to qualify, as a “venture capital operating
company” (a “VCOC”) as defined in
the regulations (the “Plan Asset
Regulations”) issued by the Department of Labor at 29 C.F.R. Section
2510.3 101, as the same may be amended from time to time (each such Person a
“VCOC Rights
Inspector”), to have customary and appropriate VCOC rights, including
consultations rights, inspection and access rights, and rights to receive
materials for all meetings of the Board of Directors, and the right to audited
and unaudited financial statements, annual budget and other financial and
operations information, including advance notification of and consultation with
respect to significant corporate actions) relating to inspection, information
and consultation with respect to the Company or the Bank. Any consultation or
inspection permitted pursuant to this Section 6.09 shall be
conducted during normal business hours and in such a manner as not to interfere
unreasonably with the conduct of the business of the Company or the
Subsidiaries, and nothing herein shall require the Company or the Subsidiaries
to disclose any information to the extent (1) prohibited by Applicable Laws
or (2) that the Company or the Subsidiaries reasonably believe such information
to be competitively sensitive proprietary information (except to the extent the
Investor provides assurances reasonably acceptable to the Company or such
Subsidiary, as applicable, that such information shall not be used by the
Investor or its affiliates to compete with the Company or such Subsidiary, as
applicable). Such Investor also shall hold and use any information that it
receives pursuant to this Section solely for purposes of managing its investment
in the Company.
“(b) From
the date of this Agreement until the date when CapGen’s Investor Percentage
Interest is less than 5%, the Company shall, and will cause each of the
Subsidiaries to, give CapGen and its representatives (including, without
limitation, officers and employees of CapGen, and counsel, accountants,
investment bankers, potential lenders and other professionals retained by
CapGen) full access during normal business hours to all of their properties,
books and records (including, without limitation, tax returns and appropriate
work papers of independent auditors under normal professional courtesy, but
excluding those books and records that under Applicable Laws, or under
confidentiality agreements, are required to be kept confidential) and to
knowledgeable personnel of the Company and to such other information as CapGen
may reasonably request.”
“(c) Each
Investor shall, and shall cause its representatives to, hold all material
nonpublic information received as a result of its access to the properties,
books and records of the Company or the Subsidiaries in confidence, except to
the extent that information (i) is or becomes available to the public (other
than through a breach of this Agreement), (ii) becomes available to the Investor
or its representatives from a third party that, insofar as the Investor is
aware, is not under an obligation to the Company or to a Subsidiary to keep the
information confidential, (iii) was known to the Investor or its
representatives before it was made available to the Investor or its
representative by the Company or a Subsidiary, or (iv) otherwise is
independently developed by the Investor or its representatives. Each Investor
shall, at the Company’s request made at any time after the termination of this
Agreement without the Closing having occurred, deliver to the Company all
documents and other material nonpublic information obtained by the Investor or
its representatives from the Company or its Subsidiaries, or certify that such
material has been destroyed by the Investor. The Investor acknowledges that it
is aware of, and will comply with, applicable restrictions on the use of
material nonpublic information with respect to the Company and its Subsidiaries
imposed by the United States federal securities laws. Any examination or
investigation made by the Investor, its representatives or any other persons as
contemplated by this Section 6.09 shall
not affect any of the representations and warranties hereunder.”
6. Amendments to Section
7.06(a). The first sentence of Section 7.06(a) of the
Agreement is hereby amended by (a) adding the phrase “, to the extent allowed
under Applicable Law,” immediately after the phrase “In addition to the
indemnity provided in the Registration Rights Agreement,” and (b) adding the
word “material” before the phrase “breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement”. The
last sentence of Section 7.06(a) of the Agreement is hereby amended by adding
the word “material” before the phrase “breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this
Agreement”.
7. Amendments to Subscription
Amounts. The subscription amounts and numbers of Purchased Shares for
which each Investor is obligated to purchase, as set forth by each Investor’s
signature to the Agreement, are each hereby amended to be those subscription
amounts and numbers of Purchased Shares set forth by each Investor’s signature
to this Amendment.
8. CapGen Expenses.
Pursuant to Section 9.09 of the Agreement, the Company shall reimburse CapGen
for all its expenses (including legal fees and charges) it has incurred in
connection with this Amendment.
9. Amendment to Merger
Agreement. This Amendment is subject to, and shall become effective upon,
(i) the execution and delivery of counterparts to this Amendment being executed
and delivered by each party hereto and (ii) the approval of the Boards of
Directors and the execution and delivery by the respective officers of each of
the Company and ABI of the First Amendment dated as of the date hereof to the
Merger Agreement, in the form attached hereto as Exhibit
1.
10. Miscellaneous. This
Amendment is governed by the laws of the State of New York without giving effect
to its conflicts of law principles and may be executed in multiple counterparts,
each of which constitutes an original, all of which, collectively, constitutes
one and the same Amendment. This Amendment shall become effective only upon its
execution and delivery by each of the parties hereto. CapGen’s execution hereof
shall serve as CapGen’s prior written consent to the matters set forth herein
for purposes of Section 6.11 of the Agreement. Except as expressly modified
herein, all terms of the Agreement are hereby ratified and affirmed by each of
the parties hereto and such Agreement remains in full force and effect
unmodified hereby.
[signature
page follows]
The
parties are signing this Amendment No. 1 to Stock Purchase Agreement as of
September 20, 2010.
| JACKSONVILLE BANCORP, INC. | |||
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By:
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/s/ Xxxxxxx X. Xxxxx, III | |
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Name:
Xxxxxxx X. Xxxxx, III
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Title: President
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Aggregate
Subscription Amount
Aggregate
Number of
Purchased
Shares: INVESTOR:
[ Signature Page to Amendment No. 1 to
Stock Purchase Agreement ]
