UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report: November 21,
2008
Banner
Corporation
(Exact
name of registrant as specified in its charter)
| Washington | 0-26584 |
91-1691604
|
| (State or other jurisdiction | (Commission File | (I.R.S. Employer |
| of incorporation) | Number) | Identification No.) |
10
S. First Avenue
Walla
Walla, Washington 99362
(Address
of principal executive offices and zip code)
(509)
527-3636
(Registrant’s
telephone number, including area code)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions.
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a
Material Definitive Agreement
On November 21, 2008, as part of the
Troubled Asset Relief Program (“TARP”) Capital Purchase Program, Banner
Corporation (“Banner”) entered into a Letter Agreement and Securities Purchase
Agreement (collectively, the “Purchase Agreement”) with the United States
Department of the Treasury (“Treasury”), pursuant to which Banner sold (i)
124,000 shares of Banner’s Fixed Rate Cumulative Perpetual Preferred Stock,
Series A (the “Series A Preferred Stock”) and (ii) a warrant (the “Warrant”) to
purchase 1,707,989 shares of Banner’s common stock, par value $0.01 per share
(the “Common Stock”), for an aggregate purchase price of $124 million in cash.
The Purchase Agreement is attached as Exhibit 10.1 hereto and is incorporated
herein by reference.
The Series A Preferred Stock will
qualify as Tier 1 capital and will be entitled to cumulative dividends at a rate
of 5% per annum for the first five years, and 9% per annum thereafter. The
Series A Preferred Stock may be redeemed by Banner after three years. Prior to
the end of three years, the Series A Preferred Stock may be redeemed by Banner
only with proceeds from the sale of qualifying equity securities of Banner (a
“Qualified Equity Offering”). The restrictions on redemption are set forth in
the Articles of Amendment to the Banner Corporation Articles of Incorporation
(the “Articles of Amendment”) described in Item 5.03 below that it
holds.
The
Warrant has a 10-year term and is immediately exercisable upon its issuance,
with an exercise price, subject to anti-dilution adjustments, equal to $10.89
per share of the Common Stock. The Warrant is attached as Exhibit 4.2 hereto and
is incorporated herein by reference. Treasury has agreed not to exercise voting
power with respect to any shares of Common Stock issued upon exercise of the
Warrant that it holds.
The
Series A Preferred Stock and the Warrant were issued in a private placement
exempt from registration pursuant to Section 4(2) of the Securities Act of 1933,
as amended. Upon the request of Treasury at any time, Banner has agreed to
promptly enter into a deposit arrangement pursuant to which the Series A
Preferred Stock may be deposited and depositary shares (“Depositary Shares”),
representing fractional shares of Series A Preferred Stock, may be issued.
Banner has agreed to register the Series A Preferred Stock, the Warrant, the
shares of Common Stock underlying the Warrant (the “Warrant Shares”) and the
Depositary Shares, if any, as soon as practicable after the date of the issuance
of the Series A Preferred Stock and the Warrant. Neither the Series A Preferred
Stock, the Warrant nor the Warrant Shares will be subject to any contractual
restrictions on transfer, except that Treasury may only transfer or exercise an
aggregate of one-half of the Warrant Shares or the Warrant as applicable, prior
to the earlier of the redemption of 100% of the shares of Series A Preferred
Stock and December 31, 2009.
The
Purchase Agreement also subjects Banner to certain of the executive compensation
limitations included in the Emergency Economic Stabilization Act of 2008 (the
“EESA”). In this connection, as a condition to the closing of the transaction,
each of Messrs. D. Michael Jones, Lloyd W. Baker, Richard B. Barton, Paul E.
Folz, Douglas M. Bennett and Michael K. Larsen, and Ms. Cynthia D. Purcell,
Banner’s Senior Executive Officers (as defined in the Purchase Agreement) (the
“Senior Executive Officers”), (i) executed a waiver (the “Waiver”) voluntarily
waiving any claim against the Treasury or Banner for any changes to such Senior
Executive Officer’s compensation or benefits that are required to comply with
the regulation issued by the Treasury under the TARP Capital Purchase Program as
published in the Federal Register on October 20, 2008 and acknowledging that the
regulation may require modification of the compensation, bonus, incentive and
other benefit plans, arrangements and policies and
2
Item 3.02 Unregistered Sales
of Equity Securities.
The
information set forth under “Item 1.01 Entry into a Material Definitive
Agreement” is incorporated by reference into this Item 3.02.
Item 3.03 Material
Modification to Rights of Security Holders.
Pursuant
to the terms of the Purchase Agreement, the ability of Banner to declare or pay
dividends or distributions on, or purchase, redeem or otherwise acquire for
consideration, shares of its Junior Stock (as defined below) and Parity Stock
(as defined below) will be subject to restrictions, including a restriction
against increasing dividends from the last quarterly cash dividend per share
($0.05) declared on the Common Stock prior to November 21, 2008. The redemption,
purchase or other acquisition of trust preferred securities of Banner or its
affiliates also will be restricted. These restrictions will terminate on the
earlier of (a) the third anniversary of the date of issuance of the Series A
Preferred Stock, (b) the date on which the Series A Preferred Stock has been
redeemed in whole, and (c) the date Treasury has transferred all of the Series A
Preferred Stock to third parties. The restrictions described in this paragraph
are set forth in the Purchase Agreement.
In
addition, pursuant to the Articles of Amendment, the ability of Banner to
declare or pay dividends or distributions on, or repurchase, redeem or otherwise
acquire for consideration, shares of its Junior Stock and Parity Stock will be
subject to restrictions in the event that Banner fails to declare and pay full
dividends (or declare and set aside a sum sufficient for payment thereof) on its
Series A Preferred Stock. These restrictions are set forth in the Articles of
Amendment described in Item 5.03.
“Junior
Stock” means the Common Stock and any other class or series of stock of Banner
the terms of which expressly provide that it ranks junior to the Series A
Preferred Stock as to dividend rights and/or rights on liquidation, dissolution
or winding up of Banner. “Parity Stock” means any class or series of stock of
Banner the terms of which do not expressly provide that such class or series
will rank senior or junior to the Series A Preferred Stock as to dividend rights
and/or rights on liquidation, dissolution or winding up of Banner (in each case
without regard to whether dividends accrue cumulatively or
non-cumulatively).
Item 5.02 Departure of
Directors or Certain Officers; Election of; Appointment of Certain Officers;
Compensation Arrangements of Certain Officers.
The
information concerning executive compensation set forth under “Item 1.01 Entry
into a Material Definitive Agreement” is incorporated by reference into this
Item 5.02.
3
Item 5.03 Amendment to
Articles of Incorporation or Bylaws; Change in Fiscal Year
On
November 19, 2008, Banner filed Articles of Amendment with the State of
Washington for the purpose of amending its Articles of Incorporation to fix the
designations, preferences, limitations and relative rights of the Series A
Preferred Stock. The Series A Preferred Stock has a liquidation preference of
$1,000 per share. The Articles of Amendment are attached hereto as Exhibit 3.1
and are incorporated by reference herein.
Item 8.01
Other Information.
On
November 21, 2008, Banner issued a press release announcing the sale of $124
million of Series A Preferred Stock to Treasury pursuant to the Purchase
Agreement. The press release is furnished as Exhibit 99.1 and is incorporated by
reference herein.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits
The
following exhibits are filed herewith:
|
Exhibit
|
No.
Description of Exhibit
|
|
|
3.1
|
Articles
of Amendment for the Series A Preferred Stock
|
|
|
4.1
|
Form
of Certificate for the Series A Preferred Stock
|
|
|
4.
2
|
Warrant
for Purchase of Shares of Common Stock
|
|
|
10.1
|
Letter
Agreement, dated November 21, 2008, between Banner Corporation and United
States Department of the Treasury, with respect to the issuance and sale
of the Series A Preferred Stock and the Warrant
|
|
|
10.2
|
Form
of Waiver
|
|
|
10.3
|
Form
of Compensation Modification Agreement
|
|
|
99.1
|
November
21, 2008 Press Release
|
4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
|
BANNER
CORPORATION
|
|
|
Date: November
24, 2008
|
By:/s/Lloyd
Baker
|
|
Lloyd
Baker
|
|
|
Executive
Vice President and
|
|
|
Chief
Financial Officer
|
5
Exhibit 3.1
ARTICLES
OF AMENDMENT
OF
BANNER
CORPORATION
(FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A)
Banner
Corporation, a
corporation organized and existing under the laws of the State of
Washington (the
“Corporation”),
in accordance with the provisions of Chapter 23B.10 and Section 23B.06.020 of the Revised Code of
Washington thereof, does hereby certify and submit for filing these Articles of
Amendment to its Articles of Incorporation:
FIRST: The name of
the corporation is Banner Corporation.
SECOND 124,000 shares of
authorized Preferred Stock of the Corporation are hereby designated as “Fixed Rate Cumulative
Perpetual Preferred Stock, Series A”.
The
voting and other powers, preferences and relative, participating, optional or
other rights, and the qualifications, limitations and restrictions thereof, of
the shares of the Fixed Rate Cumulative Perpetual Preferred Stock, Series A, as
adopted by the board of directors of the Corporation (the “Board of Directors”),
in accordance with the articles of incorporation and bylaws of the Corporation
and applicable law, on November 18, 2008 are as follows:
DESIGNATION
Part 1. Designation
and Number of Shares.
There is hereby created out of the authorized and unissued shares of preferred
stock of the Corporation a series of preferred stock designated as the “Fixed
Rate Cumulative Perpetual Preferred Stock, Series A” (the “Designated
Preferred Stock”). The authorized number of shares of
Designated Preferred Stock shall be 124,000. The Designated Preferred
Stock shall have a par value of $0.01 per share.
Part
2. Standard Provisions.
The Standard Provisions contained in Annex A attached hereto are incorporated
herein by reference in their entirety and shall be deemed to be a part of this
Certificate of Designations to the same extent as if such provisions had been
set forth in full herein.
Part.
3. Definitions. The
following terms are used in this Certificate of Designations (including the
Standard Provisions in Annex A hereto) as defined below:
(a) “Common Stock” means
the common stock, par value $0.01 per share, of the Corporation.
(b) “Dividend Payment
Date” means February 15, May 15, August 15 and November 15 of each
year.
(c) “Junior Stock” means
the Common Stock and
any other class or series of stock of the Corporation the terms of which
expressly provide that it ranks junior to Designated Preferred Stock as to
dividend rights and/or as to rights on liquidation, dissolution or winding up of
the Corporation.
(d) “Liquidation Amount”
means $1,000 per share of Designated Preferred Stock.
(e) “Minimum Amount” means
$31,000,000.
(f) “Parity Stock” means
any class or series of stock of the Corporation (other than Designated Preferred
Stock) the terms of which do not expressly provide that such class or series
will rank senior or junior to Designated Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of the Corporation
(in each case without regard to whether dividends accrue cumulatively or
non-cumulatively).
(g) “Signing Date” means
November 21, 2008.
Part.
4. Certain Voting
Matters. Holders
of shares of Designated Preferred Stock will be entitled to one vote for each
such share on any matter on which holders of Designated Preferred Stock are
entitled to vote, including any action by written consent.
THIRD: These
Articles of Amendment to the Articles of Incorporation do not provide for an
exchange, reclassification or cancellation of any issued shares.
FOURTH: The date of
adoption of these Articles of Amendment to the Articles of Incorporation is
November 18, 2008.
FIFTH: These
Articles of Amendment to the Articles of Incorporation were duly adopted by the
Board of Directors of the Corporation.
SIXTH: No
shareholder action was required.
SEVENTH: These
Articles of Amendment are effective upon filing by the Secretary of State of
Washington.
[Remainder
of Page Intentionally Left Blank]
2
SIGNATURE
Banner Corporation has caused these Articles of Amendment
to be signed by D. Michael Jones, its President and Chief Executive
Officer, this 19th
day of November,
2008.
This
document is hereby executed under penalties of perjury, and is, to the best of
my knowledge, true and correct.
| By: /s/D. Michael Jones | |
| Name: D. Michael Jones | |
| Title: President and Chief Executive Officer | |
| Banner Corporation |
3
ANNEX
A
STANDARD
PROVISIONS
Section
1. General
Matters. Each share of Designated Preferred Stock shall be identical in
all respects to every other share of Designated Preferred Stock. The Designated
Preferred Stock shall be perpetual, subject to the provisions of Section 5 of
these Standard Provisions that form a part of the Certificate of Designations.
The Designated Preferred Stock shall rank equally with Parity Stock and shall
rank senior to Junior Stock with respect to the payment of dividends and the
distribution of assets in the event of any dissolution, liquidation or winding
up of the Corporation.
Section
2. Standard
Definitions. As used herein with respect to Designated Preferred
Stock:
(a) “Applicable Dividend
Rate” means (i) during the period from the Original Issue Date to, but
excluding, the first day of the first Dividend Period commencing on or after the
fifth anniversary of the Original Issue Date, 5% per annum and (ii) from and
after the first day of the first Dividend Period commencing on or after the
fifth anniversary of the Original Issue Date, 9% per annum.
(b) “Appropriate Federal Banking
Agency” means the “appropriate Federal banking agency” with respect to
the Corporation as defined in Section 3(q) of the Federal Deposit Insurance Act
(12 U.S.C. Section 1813(q)), or any successor provision.
(c) “Business
Combination” means a merger, consolidation, statutory share exchange or
similar transaction that requires the approval of the Corporation’s
stockholders.
(d) “Business Day” means
any day except Saturday, Sunday and any day on which banking institutions in the
State of New York generally are authorized or required by law or other
governmental actions to close.
(e) “Bylaws” means the
bylaws of the Corporation, as they may be amended from time to
time.
(f) “Certificate of
Designations” means the Certificate of Designations or comparable
instrument relating to the Designated Preferred Stock, of which these Standard
Provisions form a part, as it may be amended from time to time.
(g) “Charter” means the
Corporation’s certificate or articles of incorporation, articles of association,
or similar organizational document.
(h) “Dividend Period” has
the meaning set forth in Section 3(a).
(i) “Dividend Record
Date” has the meaning set forth in Section 3(a).
(j) “Liquidation
Preference” has the meaning set forth in Section 4(a).
A-1
(k) “Original Issue Date”
means the date on which shares of Designated Preferred Stock are first
issued.
(l) “Preferred Director”
has the meaning set forth in Section 7(b).
(m) “Preferred Stock”
means any and all series of preferred stock of the Corporation, including the
Designated Preferred Stock.
(n) “Qualified Equity
Offering” means the sale and issuance for cash by the Corporation to
persons other than the Corporation or any of its subsidiaries after the Original
Issue Date of shares of perpetual Preferred Stock, Common Stock or any
combination of such stock, that, in each case, qualify as and may be included in
Tier 1 capital of the Corporation at the time of issuance under the applicable
risk-based capital guidelines of the Corporation’s Appropriate Federal Banking
Agency (other than any such sales and issuances made pursuant to agreements or
arrangements entered into, or pursuant to financing plans which were publicly
announced, on or prior to October 13, 2008).
(o) “Share Dilution
Amount” has the meaning set forth in Section 3(b).
(p) “Standard Provisions”
mean these Standard Provisions that form a part of the Certificate of
Designations relating to the Designated Preferred Stock.
(q) “Successor Preferred
Stock” has the meaning set forth in Section 5(a).
(r) “Voting Parity Stock”
means, with regard to any matter as to which the holders of Designated Preferred
Stock are entitled to vote as specified in Sections 7(a) and 7(b) of these
Standard Provisions that form a part of the Certificate of Designations, any and
all series of Parity Stock upon which like voting rights have been conferred and
are exercisable with respect to such matter.
Section
3. Dividends.
(a) Rate. Holders of
Designated Preferred Stock shall be entitled to receive, on each share of
Designated Preferred Stock if, as and when declared by the Board of Directors or
any duly authorized committee of the Board of Directors, but only out of assets
legally available therefor, cumulative cash dividends with respect to each
Dividend Period (as defined below) at a rate per annum equal to the Applicable
Dividend Rate on (i) the Liquidation Amount per share of Designated Preferred
Stock and (ii) the amount of accrued and unpaid dividends for any prior Dividend
Period on such share of Designated Preferred Stock, if any. Such dividends shall
begin to accrue and be cumulative from the Original Issue Date, shall compound
on each subsequent Dividend Payment Date (i.e., no
dividends shall accrue on other dividends unless and until the first Dividend
Payment Date for such other dividends has passed without such other dividends
having been paid on such date) and shall be payable quarterly in arrears on each
Dividend Payment Date, commencing with the first such Dividend Payment Date to
occur at least 20 calendar days after the Original Issue Date. In the event that
any Dividend Payment Date would otherwise fall on a day that is not a Business
Day, the dividend payment due on that date will be postponed to the next day
that is a Business Day and no additional dividends will accrue as a result of
that postponement. The period from and including any Dividend Payment Date to,
but
A-2
Dividends
that are payable on Designated Preferred Stock in respect of any Dividend Period
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. The amount of dividends payable on Designated Preferred Stock on any
date prior to the end of a Dividend Period, and for the initial Dividend Period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months, and actual days elapsed over a 30-day month.
Dividends
that are payable on Designated Preferred Stock on any Dividend Payment Date will
be payable to holders of record of Designated Preferred Stock as they appear on
the stock register of the Corporation on the applicable record date, which shall
be the 15th calendar day immediately preceding such Dividend Payment Date or
such other record date fixed by the Board of Directors or any duly authorized
committee of the Board of Directors that is not more than 60 nor less than 10
days prior to such Dividend Payment Date (each, a “Dividend Record
Date”). Any
such day that is a Dividend Record Date shall be a Dividend Record Date whether
or not such day is a Business Day.
Holders
of Designated Preferred Stock shall not be entitled to any dividends, whether
payable in cash, securities or other property, other than dividends (if any)
declared and payable on Designated Preferred Stock as specified in this Section
3 (subject to the other provisions of the Certificate of
Designations).
(b) Priority of
Dividends. So long as any share of Designated Preferred Stock remains
outstanding, no dividend or distribution shall be declared or paid on the Common
Stock or any other shares of Junior Stock (other than dividends payable solely
in shares of Common Stock) or Parity Stock, subject to the immediately following
paragraph in the case of Parity Stock, and no Common Stock, Junior Stock or
Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise
acquired for consideration by the Corporation or any of its subsidiaries unless
all accrued and unpaid dividends for all past Dividend Periods, including the
latest completed Dividend Period (including, if applicable as provided in
Section 3(a) above, dividends on such amount), on all outstanding shares of
Designated Preferred Stock have been or are contemporaneously declared and paid
in full (or have been declared and a sum sufficient for the payment thereof has
been set aside for the benefit of the holders of shares of Designated Preferred
Stock on the applicable record date). The foregoing limitation shall not apply
to (i) redemptions, purchases or other acquisitions of shares of Common Stock or
other Junior Stock in connection with the administration of any employee benefit
plan in the ordinary course of business (including purchases to offset the Share
Dilution Amount (as defined below) pursuant to a publicly announced repurchase
plan) and consistent with past practice, provided that any purchases to offset
the Share Dilution Amount shall in no event exceed the Share Dilution Amount;
(ii) purchases or other acquisitions by a broker-dealer subsidiary of the
Corporation solely for the purpose of market-making, stabilization or customer
facilitation transactions in Junior Stock or Parity Stock in the ordinary course
of its business; (iii) purchases by a broker-dealer subsidiary of the
Corporation of capital stock of the Corporation for resale pursuant to an
offering by the Corporation of such capital stock underwritten by such
broker-dealer subsidiary; (iv) any dividends or distributions of rights or
Junior Stock in connection with a stockholders’
A-3
When
dividends are not paid (or declared and a sum sufficient for payment thereof set
aside for the benefit of the holders thereof on the applicable record date) on
any Dividend Payment Date (or, in the case of Parity Stock having dividend
payment dates different from the Dividend Payment Dates, on a dividend payment
date falling within a Dividend Period related to such Dividend Payment Date) in
full upon Designated Preferred Stock and any shares of Parity Stock, all
dividends declared on Designated Preferred Stock and all such Parity Stock and
payable on such Dividend Payment Date (or, in the case of Parity Stock having
dividend payment dates different from the Dividend Payment Dates, on a dividend
payment date falling within the Dividend Period related to such Dividend Payment
Date) shall be declared pro rata so
that the respective amounts of such dividends declared shall bear the same ratio
to each other as all accrued and unpaid dividends per share on the shares of
Designated Preferred Stock (including, if applicable as provided in Section 3(a)
above, dividends on such amount) and all Parity Stock payable on such Dividend
Payment Date (or, in the case of Parity Stock having dividend payment dates
different from the Dividend Payment Dates, on a dividend payment date falling
within the Dividend Period related to such Dividend Payment Date) (subject to
their having been declared by the Board of Directors or a duly authorized
committee of the Board of Directors out of legally available funds and
including, in the case of Parity Stock that bears cumulative dividends, all
accrued but unpaid dividends) bear to each other. If the Board of Directors or a
duly authorized committee of the Board of Directors determines not to pay any
dividend or a full dividend on a Dividend Payment Date, the Corporation will
provide written notice to the holders of Designated Preferred Stock prior to
such Dividend Payment Date.
Subject
to the foregoing, and not otherwise, such dividends (payable in cash, securities
or other property) as may be determined by the Board of Directors or any duly
authorized committee of the Board of Directors may be declared and paid on any
securities, including Common Stock and other Junior Stock, from time to time out
of any funds legally available for such payment, and holders of Designated
Preferred Stock shall not be entitled to participate in any such
dividends.
A-4
Section
4. Liquidation Rights.
(a) Voluntary or Involuntary
Liquidation. In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary, holders of
Designated Preferred Stock shall be entitled to receive for each share of
Designated Preferred Stock, out of the assets of the Corporation or proceeds
thereof (whether capital or surplus) available for distribution to stockholders
of the Corporation, subject to the rights of any creditors of the Corporation,
before any distribution of such assets or proceeds is made to or set aside for
the holders of Common Stock and any other stock of the Corporation ranking
junior to Designated Preferred Stock as to such distribution, payment in full in
an amount equal to the sum of (i) the Liquidation Amount per share and (ii) the
amount of any accrued and unpaid dividends (including, if applicable as provided
in Section 3(a) above, dividends on such amount), whether or not declared, to
the date of payment (such amounts collectively, the “Liquidation Preference”).
(b) Partial Payment. If
in any distribution described in Section 4(a) above the assets of the
Corporation or proceeds thereof are not sufficient to pay in full the amounts
payable with respect to all outstanding shares of Designated Preferred Stock and
the corresponding amounts payable with respect of any other stock of the
Corporation ranking equally with Designated Preferred Stock as to such
distribution, holders of Designated Preferred Stock and the holders of such
other stock shall share ratably in any such distribution in proportion to the
full respective distributions to which they are entitled.
(c) Residual
Distributions. If the Liquidation Preference has been paid in full to all
holders of Designated Preferred Stock and the corresponding amounts payable with
respect of any other stock of the Corporation ranking equally with Designated
Preferred Stock as to such distribution has been paid in full, the holders of
other stock of the Corporation shall be entitled to receive all remaining assets
of the Corporation (or proceeds thereof) according to their respective rights
and preferences.
(d) Merger, Consolidation and
Sale of Assets Not Liquidation. For purposes of this Section 4, the
merger or consolidation of the Corporation with any other corporation or other
entity, including a merger or consolidation in which the holders of Designated
Preferred Stock receive cash, securities or other property for their shares, or
the sale, lease or exchange (for cash, securities or other property) of all or
substantially all of the assets of the Corporation, shall not constitute a
liquidation, dissolution or winding up of the Corporation.
Section
5. Redemption.
(a) Optional Redemption.
Except as provided below, the Designated Preferred Stock may not be redeemed
prior to the first Dividend Payment Date falling on or after the third
anniversary of the Original Issue Date. On or after the first Dividend Payment
Date falling on or after the third anniversary of the Original Issue Date, the
Corporation, at its option, subject to the approval of the Appropriate Federal
Banking Agency, may redeem, in whole or in part, at any time and from time to
time, out of funds legally available therefor, the shares of Designated
Preferred Stock at the time outstanding, upon notice given as provided in
Section 5(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as
A-5
Notwithstanding
the foregoing, prior to the first Dividend Payment Date falling on or after the
third anniversary of the Original Issue Date, the Corporation, at its option,
subject to the approval of the Appropriate Federal Banking Agency, may redeem,
in whole or in part, at any time and from time to time, the shares of Designated
Preferred Stock at the time outstanding, upon notice given as provided in
Section 5(c) below, at a redemption price equal to the sum of (i) the
Liquidation Amount per share and (ii) except as otherwise
provided below, any accrued and unpaid dividends (including, if applicable as
provided in Section 3(a) above, dividends on such amount) (regardless of whether
any dividends are actually declared) to, but excluding, the date fixed for
redemption; provided
that (x) the Corporation (or any successor by Business Combination) has
received aggregate gross proceeds of not less than the Minimum Amount (plus the
“Minimum Amount” as defined in the relevant certificate of designations for each
other outstanding series of preferred stock of such successor that was
originally issued to the United States Department of the Treasury (the “Successor Preferred
Stock”) in connection with the Troubled Asset Relief Program Capital
Purchase Program) from one or more Qualified Equity Offerings (including
Qualified Equity Offerings of such successor), and (y) the aggregate redemption
price of the Designated Preferred Stock (and any Successor Preferred Stock)
redeemed pursuant to this paragraph may not exceed the aggregate net cash
proceeds received by the Corporation (or any successor by Business Combination)
from such Qualified Equity Offerings (including Qualified Equity Offerings of
such successor).
The
redemption price for any shares of Designated Preferred Stock shall be payable
on the redemption date to the holder of such shares against surrender of the
certificate(s) evidencing such shares to the Corporation or its agent. Any
declared but unpaid dividends payable on a redemption date that occurs
subsequent to the Dividend Record Date for a Dividend Period shall not be paid
to the holder entitled to receive the redemption price on the redemption date,
but rather shall be paid to the holder of record of the redeemed shares on such
Dividend Record Date relating to the Dividend Payment Date as provided in
Section 3 above.
(b) No Sinking Fund. The
Designated Preferred Stock will not be subject to any mandatory redemption,
sinking fund or other similar provisions. Holders of Designated Preferred Stock
will have no right to require redemption or repurchase of any shares of
Designated Preferred Stock.
(c) Notice of Redemption.
Notice of every redemption of shares of Designated Preferred Stock shall be
given by first class mail, postage prepaid, addressed to the holders of record
of the shares to be redeemed at their respective last addresses appearing on the
books of the Corporation. Such mailing shall be at least 30 days and not more
than 60 days before the date fixed for redemption. Any notice mailed as provided
in this Subsection shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice, but failure duly to give such
notice by mail, or any defect in such notice or in the mailing thereof, to any
holder of shares of Designated Preferred Stock designated for redemption shall
not affect the validity of the proceedings for the redemption of any other
shares of Designated Preferred Stock. Notwithstanding the foregoing, if shares
of Designated Preferred Stock are issued in book-entry
A-6
(d) Partial Redemption.
In case of any redemption of part of the shares of Designated Preferred Stock at
the time outstanding, the shares to be redeemed shall be selected either pro rata or
in such other manner as the Board of Directors or a duly authorized committee
thereof may determine to be fair and equitable. Subject to the provisions
hereof, the Board of Directors or a duly authorized committee thereof shall have
full power and authority to prescribe the terms and conditions upon which shares
of Designated Preferred Stock shall be redeemed from time to time. If fewer than
all the shares represented by any certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without charge to the holder
thereof.
(e) Effectiveness of
Redemption. If notice of redemption has been duly given and if on or
before the redemption date specified in the notice all funds necessary for the
redemption have been deposited by the Corporation, in trust for the pro rata
benefit of the holders of the shares called for redemption, with a bank
or trust company doing business in the Borough of Manhattan, The City of New
York, and having a capital and surplus of at least $500 million and selected by
the Board of Directors, so as to be and continue to be available solely
therefor, then, notwithstanding that any certificate for any share so called for
redemption has not been surrendered for cancellation, on and after the
redemption date dividends shall cease to accrue on all shares so called for
redemption, all shares so called for redemption shall no longer be deemed
outstanding and all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on such redemption from such bank or trust
company, without interest. Any funds unclaimed at the end of three years from
the redemption date shall, to the extent permitted by law, be released to the
Corporation, after which time the holders of the shares so called for redemption
shall look only to the Corporation for payment of the redemption price of such
shares.
(f) Status of Redeemed
Shares. Shares of Designated Preferred Stock that are redeemed,
repurchased or otherwise acquired by the Corporation shall revert to authorized
but unissued shares of Preferred Stock (provided
that any such cancelled shares of Designated Preferred Stock may be
reissued only as shares of any series of Preferred Stock other than Designated
Preferred Stock).
Section
6. Conversion.
Holders of Designated Preferred Stock shares shall have no right to exchange or
convert such shares into any other securities.
Section
7. Voting
Rights.
(a) General. The holders
of Designated Preferred Stock shall not have any voting rights except as set
forth below or as otherwise from time to time required by law.
A-7
(b) Preferred Stock
Directors. Whenever, at any time or times, dividends payable on the
shares of Designated Preferred Stock have not been paid for an aggregate of six
quarterly Dividend Periods or more, whether or not consecutive, the authorized
number of directors of the Corporation shall automatically be increased by two
and the holders of the Designated Preferred Stock shall have the right, with
holders of shares of any one or more other classes or series of Voting Parity
Stock outstanding at the time, voting together as a class, to elect two
directors (hereinafter the “Preferred Directors”
and each a “Preferred
Director”) to fill such newly created directorships at the Corporation’s
next annual meeting of stockholders (or at a special meeting called for that
purpose prior to such next annual meeting) and at each subsequent annual meeting
of stockholders until all accrued and unpaid dividends for all past Dividend
Periods, including the latest completed Dividend Period (including, if
applicable as provided in Section 3(a) above, dividends on such amount), on all
outstanding shares of Designated Preferred Stock have been declared and paid in
full at which time such right shall terminate with respect to the Designated
Preferred Stock, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above mentioned; provided
that it shall be a qualification for election for any Preferred Director
that the election of such Preferred Director shall not cause the Corporation to
violate any corporate governance requirements of any securities exchange or
other trading facility on which securities of the Corporation may then be listed
or traded that listed or traded companies must have a majority of independent
directors. Upon any termination of the right of the holders of shares of
Designated Preferred Stock and Voting Parity Stock as a class to vote for
directors as provided above, the Preferred Directors shall cease to be qualified
as directors, the term of office of all Preferred Directors then in office shall
terminate immediately and the authorized number of directors shall be reduced by
the number of Preferred Directors elected pursuant hereto. Any Preferred
Director may be removed at any time, with or without cause, and any vacancy
created thereby may be filled, only by the affirmative vote of the holders a
majority of the shares of Designated Preferred Stock at the time outstanding
voting separately as a class together with the holders of shares of Voting
Parity Stock, to the extent the voting rights of such holders described above
are then exercisable. If the office of any Preferred Director becomes vacant for
any reason other than removal from office as aforesaid, the remaining Preferred
Director may choose a successor who shall hold office for the unexpired term in
respect of which such vacancy occurred.
(c) Class Voting Rights as to
Particular Matters. So long as any shares of Designated Preferred Stock
are outstanding, in addition to any other vote or consent of stockholders
required by law or by the Charter, the vote or consent of the holders of at
least 66 2/3% of the shares of Designated Preferred Stock at the time
outstanding, voting as a separate class, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
| (i) Authorization of Senior Stock. Any amendment or alteration of the Certificate of Designations for the Designated Preferred Stock or the Charter to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock of the Corporation ranking senior to Designated Preferred Stock with respect to either or both the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up of the Corporation; |
A-8
|
(ii) Amendment of
Designated Preferred Stock. Any amendment, alteration or repeal of
any provision of the Certificate of Designations for the Designated
Preferred Stock or the Charter (including, unless no vote on such merger
or consolidation is required by Section 7(c)(iii) below, any amendment,
alteration or repeal by means of a merger, consolidation or otherwise) so
as to adversely affect the rights, preferences, privileges or voting
powers of the Designated Preferred Stock; or
|
|
|
(iii) Share Exchanges,
Reclassifications, Mergers and Consolidations. Any consummation of
a binding share exchange or reclassification involving the Designated
Preferred Stock, or of a merger or consolidation of the Corporation with
another corporation or other entity, unless in each case (x) the shares of
Designated Preferred Stock remain outstanding or, in the case of any such
merger or consolidation with respect to which the Corporation is not the
surviving or resulting entity, are converted into or exchanged for
preference securities of the surviving or resulting entity or its ultimate
parent, and (y) such shares remaining outstanding or such preference
securities, as the case may be, have such rights, preferences, privileges
and voting powers, and limitations and restrictions thereof, taken as a
whole, as are not materially less favorable to the holders thereof than
the rights, preferences, privileges and voting powers, and limitations and
restrictions thereof, of Designated Preferred Stock immediately prior to
such consummation, taken as a
whole;
|
provided, however,
that for all purposes of this Section 7(c), any increase in the amount of
the authorized Preferred Stock, including any increase in the authorized amount
of Designated Preferred Stock necessary to satisfy preemptive or similar rights
granted by the Corporation to other persons prior to the Signing Date, or the
creation and issuance, or an increase in the authorized or issued amount,
whether pursuant to preemptive or similar rights or otherwise, of any other
series of Preferred Stock, or any securities convertible into or exchangeable or
exercisable for any other series of Preferred Stock, ranking equally with and/or
junior to Designated Preferred Stock with respect to the payment of dividends
(whether such dividends are cumulative or non-cumulative) and the distribution
of assets upon liquidation, dissolution or winding up of the Corporation will
not be deemed to adversely affect the rights, preferences, privileges or voting
powers, and shall not require the affirmative vote or consent of, the holders of
outstanding shares of the Designated Preferred Stock.
(d) Changes after Provision for
Redemption. No vote or consent of the holders of Designated Preferred
Stock shall be required pursuant to Section 7(c) above if, at or prior to the
time when any such vote or consent would otherwise be required pursuant to such
Section, all outstanding shares of the Designated Preferred Stock shall have
been redeemed, or shall have been called for redemption upon proper notice and
sufficient funds shall have been deposited in trust for such redemption, in each
case pursuant to Section 5 above.
(e) Procedures for Voting and
Consents. The rules and procedures for calling and conducting any meeting
of the holders of Designated Preferred Stock (including, without limitation, the
fixing of a record date in connection therewith), the solicitation and use of
proxies at such a meeting, the obtaining of written consents and any other
aspect or matter with regard to such a meeting or such consents shall be
governed by any rules of the Board of Directors or any duly authorized committee
of the Board of Directors, in its discretion, may adopt from time to
A-9
Section
8. Record
Holders. To the fullest extent permitted by applicable law, the
Corporation and the transfer agent for Designated Preferred Stock may deem and
treat the record holder of any share of Designated Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the Corporation nor such
transfer agent shall be affected by any notice to the contrary.
Section
9. Notices. All
notices or communications in respect of Designated Preferred Stock shall be
sufficiently given if given in writing and delivered in person or by first class
mail, postage prepaid, or if given in such other manner as may be permitted in
this Certificate of Designations, in the Charter or Bylaws or by applicable law.
Notwithstanding the foregoing, if shares of Designated Preferred Stock are
issued in book-entry form through The Depository Trust Corporation or any
similar facility, such notices may be given to the holders of Designated
Preferred Stock in any manner permitted by such facility.
Section
10. No Preemptive
Rights. No share of Designated Preferred Stock shall have any rights of
preemption whatsoever as to any securities of the Corporation, or any warrants,
rights or options issued or granted with respect thereto, regardless of how such
securities, or such warrants, rights or options, may be designated, issued or
granted.
Section
11. Replacement
Certificates. The Corporation shall replace any mutilated certificate at
the holder’s expense upon surrender of that certificate to the Corporation. The
Corporation shall replace certificates that become destroyed, stolen or lost at
the holder’s expense upon delivery to the Corporation of reasonably satisfactory
evidence that the certificate has been destroyed, stolen or lost, together with
any indemnity that may be reasonably required by the Corporation.
Section
12. Other
Rights. The shares of Designated Preferred Stock shall not have any
rights, preferences, privileges or voting powers or relative, participating,
optional or other special rights, or qualifications, limitations or restrictions
thereof, other than as set forth herein or in the Charter or as provided by
applicable law.
A-10
Exhibit
4.1
BANNER CORPORATION
INCORPORATED
UNDER THE LAWS OF THE STATE OF WASHINGTON
|
NUMBER
|
SHARES
|
See
Reverse For
Certain
Definitions
THIS
CERTIFIES THAT
________________________________________________
is the
owner of
FULLY PAID AND NONASSESSABLE SHARES OF
FIXED RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A, $.01 PAR VALUE PER
SHARE (LIQUIDATION AMOUNT OF $_____ PER SHARE), OF
Banner
Corporation (“Corporation”), a stock corporation incorporated under the laws of
the State of Washington. The shares represented by this Certificate
are transferable only on the stock transfer books of the Corporation by the
holder of record hereof or by such holder’s duly authorized attorney or legal
representative upon the surrender of this Certificate properly
endorsed. Such shares are non-withdrawable and not
insurable. Such shares are not insured by the federal
government. The Certificate and shares represented hereby are issued
and shall be held subject to all provisions of the Articles of Incorporation and
Bylaws of the Corporation and any amendments thereto (copies of which are on
file with the Corporation), to all of which provisions the holder by acceptance
hereof, assents.
IN WITNESS WHEREOF, Banner Corporation
has caused this Certificate to be executed by the facsimile signatures of its
duly authorized officers and has caused a facsimile of its corporate seal to be
hereunto affixed.
|
|
|
| Albert H. Marshall | D. Michael Jones |
| CORPORATE SECRETARY | PRESIDENT AND CHIEF EXECUTIVE OFFICER |
BANNER
CORPORATION
The shares represented by this
Certificate are issued subject to all the provisions of the Articles of
Incorporation and Bylaws of Banner Corporation (“Corporation”) as from time to
time amended (copies of which are on file at the principal executive offices of
the Corporation).
The Corporation will furnish to any
shareholder on request in writing and without charge a full statement of the
designations, relative rights, preferences, and limitations applicable to each
class of stock of the Corporation and the variations in rights, preferences, and
limitations determined for each series of such class, and the authority of the
board of directors of the Corporation to determine variations for future
series. Such request may be made to the Secretary of the
Corporation.
The following abbreviations, when used
in the inscription on the face of this certificate, shall be construed as
through they were written out in full according to applicable laws or
regulations.
|
TEN
COM -as tenants in common
|
JT
TEN
|
-as
joint tenants with right of survivorship and not as tenants in
common
|
| TEN ENT -as tenants by the entireties | UNIF GIFT MIN ACT -____Custodian____ under Uniform Gifts to Minors Act ______ | |
| (Cust) (Minor) (State) |
Additional
abbreviations may also be used though not in the above list.
For value received,
___________________________________________ hereby sell, assign and transfer
unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF
ASSIGNEE
shares of
the common stock evidenced by this Certificate, and do hereby irrevocably
constitute and appoint __________________________________, Attorney, to transfer
the said shares on the books of the within named Corporation, with full power of
substitution.
Dated
_________________ ____________________________________
Signature
____________________________________
Signature
NOTICE: The
signature to this assignment must correspond with the name as written upon the
face of the Certificate in every particular, without alteration or enlargement
or any change whatever.
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT IS NOTIFIED OF THE EXEMPTION FROM SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. ANY TRANSFEREE OF THE
SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR
SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THE SECURITIES REPRESENTED BY
THIS INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
Exhibit 4.2
|
WARRANT TO PURCHASE COMMON
STOCK
|
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND
OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE ISSUER OF THESE
SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH
THE ISSUER. THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR
OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT WILL BE VOID.
|
WARRANT
to
purchase
1,707,989
Shares of Common
Stock
of Banner
Corporation
Issue Date: November 21, 2008
|
1. Definitions. Unless
the context otherwise requires, when used herein the following
terms shall have the meanings indicated.
“Affiliate” has the meaning
ascribed to it in the Purchase Agreement.
“Appraisal Procedure” means a
procedure whereby two independent appraisers, one chosen by the Company and one
by the Original Warrantholder, shall mutually agree upon the determinations then
the subject of appraisal. Each party shall deliver a notice to the other
appointing its appraiser within 15 days after the Appraisal Procedure is
invoked. If within 30 days after appointment of the two appraisers they are
unable to agree upon the amount in question, a third independent appraiser shall
be chosen within 10 days thereafter by the mutual consent of such first two
appraisers. The decision of the third appraiser so appointed and chosen shall be
given within 30 days after the selection of such third appraiser. If three
appraisers shall be appointed and the determination of one appraiser is
disparate from the middle determination by more than twice the amount by which
the other determination is disparate from the middle determination, then the
determination of such appraiser shall be excluded, the remaining two
determinations shall be averaged and such average shall be binding and
conclusive upon the
Company
and the Original Warrantholder; otherwise, the average of all three
determinations shall be binding upon the Company and the Original Warrantholder.
The costs of conducting any Appraisal Procedure shall be borne by the
Company.
“Board of Directors” means the
board of directors of the Company, including any duly authorized committee
thereof.
“Business Combination” means a
merger, consolidation, statutory share exchange or similar transaction that
requires the approval of the Company’s stockholders.
“business day” means any day
except Saturday, Sunday and any day on which banking institutions in the State
of New York generally are authorized or required by law or other governmental
actions to close.
“Capital Stock” means (A) with
respect to any Person that is a corporation or company, any and all shares,
interests, participations or other equivalents (however designated) of capital
or capital stock of such Person and (B) with respect to any Person that is not a
corporation or company, any and all partnership or other equity interests of
such Person.
“Charter” means, with respect
to any Person, its certificate or articles of incorporation, articles of
association, or similar organizational document.
“Common Stock” has the meaning
ascribed to it in the Purchase Agreement.
“Company” means the Person
whose name, corporate or other organizational form and jurisdiction of
organization is set forth in Item 1 of Schedule A hereto.
“conversion” has the meaning
set forth in Section 13(B).
“convertible securities” has
the meaning set forth in Section 13(B).
“CPP” has the meaning ascribed
to it in the Purchase Agreement.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated thereunder.
“Exercise Price” means the
amount set forth in Item 2 of Schedule A hereto.
“Expiration Time” has the
meaning set forth in Section 3.
“Fair Market Value” means,
with respect to any security or other property, the fair market value of such
security or other property as determined by the Board of Directors, acting in
good faith or, with respect to Section 14, as determined by the Original
Warrantholder acting in good faith. For so long as the Original Warrantholder
holds this Warrant or any portion thereof, it may object in writing to the Board
of Director’s calculation of fair market value within 10 days of receipt of
written notice thereof. If the Original Warrantholder and the Company are unable
to agree on fair market value during the 10-day period following the delivery of
the Original Warrantholder’s objection, the Appraisal Procedure may be invoked
by either party to
2
determine
Fair Market Value by delivering written notification thereof not later than the
30th
day after delivery of the Original Warrantholder’s objection.
“Governmental Entities” has
the meaning ascribed to it in the Purchase Agreement.
“Initial Number” has the
meaning set forth in Section 13(B).
“Issue Date” means the date
set forth in Item 3 of Schedule A hereto.
“Market Price” means, with
respect to a particular security, on any given day, the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the last closing bid and ask prices regular way, in either case on
the principal national securities exchange on which the applicable securities
are listed or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the closing bid and ask prices
as furnished by two members of the Financial Industry Regulatory Authority, Inc.
selected from time to time by the Company for that purpose. “Market Price” shall
be determined without reference to after hours or extended hours trading. If
such security is not listed and traded in a manner that the quotations referred
to above are available for the period required hereunder, the Market Price per
share of Common Stock shall be deemed to be (i) in the event that any portion of
the Warrant is held by the Original Warrantholder, the fair market value per
share of such security as determined in good faith by the Original Warrantholder
or (ii) in all other circumstances, the fair market value per share of such
security as determined in good faith by the Board of Directors in reliance on an
opinion of a nationally recognized independent investment banking corporation
retained by the Company for this purpose and certified in a resolution to the
Warrantholder. For the purposes of determining the Market Price of the Common
Stock on the "trading day" preceding, on or following the occurrence of an
event, (i) that trading day shall be deemed to commence immediately after the
regular scheduled closing time of trading on the New York Stock Exchange or, if
trading is closed at an earlier time, such earlier time and (ii) that trading
day shall end at the next regular scheduled closing time, or if trading is
closed at an earlier time, such earlier time (for the avoidance of doubt, and as
an example, if the Market Price is to be determined as of the last trading day
preceding a specified event and the closing time of trading on a particular day
is 4:00 p.m. and the specified event occurs at 5:00 p.m. on that day, the Market
Price would be determined by reference to such 4:00 p.m. closing
price).
“Ordinary Cash Dividends”
means a regular quarterly cash dividend on shares of Common Stock out of surplus
or net profits legally available therefor (determined in accordance with
generally accepted accounting principles in effect from time to time), provided that Ordinary Cash
Dividends shall not include any cash dividends paid subsequent to the Issue Date
to the extent the aggregate per share dividends paid on the outstanding Common
Stock in any quarter exceed the amount set forth in Item 4 of Schedule A hereto,
as adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.
“Original Warrantholder” means
the United States Department of the Treasury. Any actions specified to be taken
by the Original Warrantholder hereunder may only be taken by such Person and not
by any other Warrantholder.
3
“Permitted Transactions” has
the meaning set forth in Section 13(B).
“Person” has the meaning given
to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act.
“Per Share Fair Market Value”
has the meaning set forth in Section 13(C).
“Preferred Shares” means the
perpetual preferred stock issued to the Original Warrantholder on the Issue Date
pursuant to the Purchase Agreement.
“Pro Rata Repurchases” means
any purchase of shares of Common Stock by the Company or any Affiliate thereof
pursuant to (A) any tender offer or exchange offer subject to Section 13(e) or
14(e) of the Exchange Act or Regulation 1 4E promulgated thereunder or (B) any
other offer available to substantially all holders of Common Stock, in the case
of both (A) or (B), whether for cash, shares of Capital Stock of the Company,
other securities of the Company, evidences of indebtedness of the Company or any
other Person or any other property (including, without limitation, shares of
Capital Stock, other securities or evidences of indebtedness of a subsidiary),
or any combination thereof, effected while this Warrant is outstanding. The
“Effective Date” of a
Pro Rata Repurchase shall mean the date of acceptance of shares for purchase or
exchange by the Company under any tender or exchange offer which is a Pro Rata
Repurchase or the date of purchase with respect to any Pro Rata Repurchase that
is not a tender or exchange offer.
“Purchase Agreement” means the
Securities Purchase Agreement – Standard Terms incorporated into the Letter
Agreement, dated as of the date set forth in Item 5 of Schedule A hereto, as
amended from time to time, between the Company and the United States Department
of the Treasury (the “Letter
Agreement”), including all annexes and schedules thereto.
“Qualified Equity Offering”
has the meaning ascribed to it in the Purchase Agreement.
“Regulatory Approvals” with
respect to the Warrantholder, means, to the extent applicable and required to
permit the Warrantholder to exercise this Warrant for shares of Common Stock and
to own such Common Stock without the Warrantholder being in violation of
applicable law, rule or regulation, the receipt of any necessary approvals and
authorizations of, filings and registrations with, notifications to, or
expiration or termination of any applicable waiting period under, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder.
“SEC” means the U.S.
Securities and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
“Shares” has the meaning set
forth in Section 2.
“trading day” means (A) if
the shares of Common Stock are not traded on any national or regional securities
exchange or association or over-the-counter market, a business day or (B) if the
shares of Common Stock are traded on any national or regional securities
exchange or
4
association
or over-the-counter market, a business day on which such relevant exchange or
quotation system is scheduled to be open for business and on which the shares of
Common Stock (i) are not suspended from trading on any national or regional
securities exchange or association or over-the-counter market for any period or
periods aggregating one half hour or longer; and (ii) have traded at least once
on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the shares
of Common Stock.
“U.S. GAAP” means United
States generally accepted accounting principles.
“Warrantholder” has the
meaning set forth in Section 2.
“Warrant” means this Warrant,
issued pursuant to the Purchase Agreement.
2. Number of Shares; Exercise
Price. This certifies that, for value received, the United States
Department of the Treasury or its permitted assigns (the “Warrantholder”) is entitled,
upon the terms and subject to the conditions hereinafter set forth, to acquire
from the Company, in whole or in part, after the receipt of all applicable
Regulatory Approvals, if any, up to an aggregate of the number of fully paid and
nonassessable shares of Common Stock set forth in Item 6 of Schedule A hereto,
at a purchase price per share of Common Stock equal to the Exercise Price. The
number of shares of Common Stock (the “Shares”) and the Exercise
Price are subject to adjustment as provided herein, and all references to
“Common Stock,” “Shares” and “Exercise Price” herein shall be deemed to include
any such adjustment or series of adjustments.
3. Exercise of Warrant;
Term. Subject to Section 2, to the extent permitted by applicable laws
and regulations, the right to purchase the Shares represented by this Warrant is
exercisable, in whole or in part by the Warrantholder, at any time or from time
to time after the execution and delivery of this Warrant by the Company on the
date hereof, but in no event later than 5:00 p.m., New York City time on the
tenth anniversary of the Issue Date (the “Expiration Time”), by (A) the surrender
of this Warrant and Notice of Exercise annexed hereto, duly completed and
executed on behalf of the Warrantholder, at the principal executive office of
the Company located at the address set forth in Item 7 of Schedule A hereto (or
such other office or agency of the Company in the United States as it may
designate by notice in writing to the Warrantholder at the address of the
Warrantholder appearing on the books of the Company), and (B) payment of the
Exercise Price for the Shares thereby purchased:
(i) by having
the Company withhold, from the shares of Common Stock that would otherwise be
delivered to the Warrantholder upon such exercise, shares of Common stock
issuable upon exercise of the Warrant equal in value to the aggregate Exercise
Price as to which this Warrant is so exercised based on the Market Price of the
Common Stock on the trading day on which this Warrant is exercised and the
Notice of Exercise is delivered to the Company pursuant to this Section 3,
or
(ii) with the
consent of both the Company and the Warrantholder, by tendering in cash, by
certified or cashier’s check payable to the order of the Company, or by wire
transfer of immediately available funds to an account designated by the
Company.
5
If the
Warrantholder does not exercise this Warrant in its entirety, the Warrantholder
will be entitled to receive from the Company within a reasonable time, and in
any event not exceeding three business days, a new warrant in substantially
identical form for the purchase of that number of Shares equal to the difference
between the number of Shares subject to this Warrant and the number of Shares as
to which this Warrant is so exercised. Notwithstanding anything in this Warrant
to the contrary, the Warrantholder hereby acknowledges and agrees that its
exercise of this Warrant for Shares is subject to the condition that the
Warrantholder will have first received any applicable Regulatory
Approvals.
4. Issuance of Shares;
Authorization; Listing. Certificates for Shares issued upon exercise of
this Warrant will be issued in such name or names as the Warrantholder may
designate and will be delivered to such named Person or Persons within a
reasonable time, not to exceed three business days after the date on which this
Warrant has been duly exercised in accordance with the terms of this Warrant.
The Company hereby represents and warrants that any Shares issued upon the
exercise of this Warrant in accordance with the provisions of Section 3 will be
duly and validly authorized and issued, fully paid and nonassessable and free
from all taxes, liens and charges (other than liens or charges created by the
Warrantholder, income and franchise taxes incurred in connection with the
exercise of the Warrant or taxes in respect of any transfer occurring
contemporaneously therewith). The Company agrees that the Shares so issued will
be deemed to have been issued to the Warrantholder as of the close of business
on the date on which this Warrant and payment of the Exercise Price are
delivered to the Company in accordance with the terms of this Warrant,
notwithstanding that the stock transfer books of the Company may then be closed
or certificates representing such Shares may not be actually delivered on such
date. The Company will at all times reserve and keep available, out of its
authorized but unissued Common Stock, solely for the purpose of providing for
the exercise of this Warrant, the aggregate number of shares of Common Stock
then issuable upon exercise of this Warrant at any time. The Company will (A)
procure, at its sole expense, the listing of the Shares issuable upon exercise
of this Warrant at any time, subject to issuance or notice of issuance, on all
principal stock exchanges on which the Common Stock is then listed or traded and
(B) maintain such listings of such Shares at all times after issuance. The
Company will use reasonable best efforts to ensure that the Shares may be issued
without violation of any applicable law or regulation or of any requirement of
any securities exchange on which the Shares are listed or traded.
5. No Fractional Shares or
Scrip. No fractional Shares or scrip representing fractional Shares shall
be issued upon any exercise of this Warrant. In lieu of any fractional Share to
which the Warrantholder would otherwise be entitled, the Warrantholder shall be
entitled to receive a cash payment equal to the Market Price of the Common Stock
on the last trading day preceding the date of exercise less the pro-rated
Exercise Price for such fractional share.
6. No Rights as Stockholders;
Transfer Books. This Warrant does not entitle the Warrantholder to any
voting rights or other rights as a stockholder of the Company prior to the date
of exercise hereof. The Company will at no time close its transfer books against
transfer of this Warrant in any manner which interferes with the timely exercise
of this Warrant.
6
8. Transfer/Assignment.
(A) Subject
to compliance with clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of the Company
by the registered holder hereof in person or by duly authorized attorney, and a
new warrant shall be made and delivered by the Company, of the same tenor and
date as this Warrant but registered in the name of one or more transferees, upon
surrender of this Warrant, duly endorsed, to the office or agency of the Company
described in Section 3. All expenses (other than stock transfer taxes) and other
charges payable in connection with the preparation, execution and delivery of
the new warrants pursuant to this Section 8 shall be paid by the
Company.
(B) The
transfer of the Warrant and the Shares issued upon exercise of the Warrant are
subject to the restrictions set forth in Section 4.4 of the Purchase Agreement.
If and for so long as required by the Purchase Agreement, this Warrant shall
contain the legends as set forth in Sections 4.2(a) and 4.2(b) of the Purchase
Agreement.
9. Exchange and Registry of
Warrant. This Warrant is exchangeable, upon the surrender
hereof by the Warrantholder to the Company, for a new warrant or warrants of
like tenor and representing the right to purchase the same aggregate number of
Shares. The Company shall maintain a registry showing the name and address of
the Warrantholder as the registered holder of this Warrant. This Warrant may be
surrendered for exchange or exercise in accordance with its terms, at the office
of the Company, and the Company shall be entitled to rely in all respects, prior
to written notice to the contrary, upon such registry.
10. Loss, Theft, Destruction or
Mutilation of Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and in the case of any such loss, theft or
destruction, upon receipt of a bond, indemnity or security reasonably
satisfactory to the Company, or, in the case of any such mutilation, upon
surrender and cancellation of this Warrant, the Company shall make and deliver,
in lieu of such lost, stolen, destroyed or mutilated Warrant, a new Warrant of
like tenor and representing the right to purchase the same aggregate number of
Shares as provided for in such lost, stolen, destroyed or mutilated
Warrant.
11. Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of
any
action or the expiration of any right required or granted herein shall not be a
business day, then such action may be taken or such right may be exercised on
the next succeeding day that is a business day.
12. Rule 144 Information.
The Company covenants that it will use its reasonable best efforts
to timely file all reports and other documents required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations
promulgated by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of any
7
Warrantholder,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will use reasonable best efforts
to take such further action as any Warrantholder may reasonably request, in each
case to the extent required from time to time to enable such holder to, if
permitted by the terms of this Warrant and the Purchase Agreement, sell this
Warrant without registration under the Securities Act within the limitation of
the exemptions provided by (A) Rule 144 under the Securities Act, as such rule
may be amended from time to time, or (B) any successor rule or regulation
hereafter adopted by the SEC. Upon
the written request of any Warrantholder, the Company will deliver to such
Warrantholder a written statement that it has complied with such
requirements.
13. Adjustments and Other
Rights. The Exercise Price and the number of Shares issuable
upon exercise of this Warrant shall be subject to adjustment from time to time
as follows; provided,
that if more than one subsection of this Section 13 is applicable to a single
event, the subsection shall be applied that produces the largest adjustment and
no single event shall cause an adjustment under more than one subsection of this
Section 13 so as to result in duplication:
(A) Stock Splits, Subdivisions,
Reclassifications or Combinations. If the Company shall (i) declare and
pay a dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide or reclassify the outstanding shares of Common Stock into
a greater number of shares, or (iii) combine or reclassify the outstanding
shares of Common Stock into a smaller number of shares, the number of Shares
issuable upon exercise of this Warrant at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be proportionately adjusted so that the Warrantholder
after such date shall be entitled to purchase the number of shares of Common
Stock which such holder would have owned or been entitled to receive in respect
of the shares of Common Stock subject to this Warrant after such date had this
Warrant been exercised immediately prior to such date. In such event, the
Exercise Price in effect at the time of the record date for such dividend or
distribution or the effective date of such subdivision, combination or
reclassification shall be adjusted to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this Warrant
before such adjustment and (2) the Exercise Price in effect immediately prior to
the record or effective date, as the case may be, for the dividend,
distribution, subdivision, combination or reclassification giving rise to this
adjustment by (y) the new number of Shares issuable upon exercise of the Warrant
determined pursuant to the immediately preceding sentence.
(B) Certain Issuances of Common
Shares or Convertible Securities. Until the earlier of (i) the date on
which the Original Warrantholder no longer holds this Warrant or any portion
thereof and (ii) the third anniversary of the Issue Date, if the Company shall
issue shares of Common Stock (or rights or warrants or other securities
exercisable or convertible into or exchangeable (collectively, a “conversion”) for shares of
Common Stock) (collectively, “convertible securities”)
(other than in Permitted Transactions (as defined below) or a transaction to
which subsection (A) of this Section 13 is applicable) without consideration or
at a consideration per share (or having a conversion price per share) that is
less than 90% of the Market Price on the last trading day preceding the date of
the agreement on pricing such shares (or such convertible securities) then, in
such event:
8
(A) the
number of Shares issuable upon the exercise of this Warrant immediately prior to
the date of the agreement on pricing of such shares (or of such convertible
securities) (the “Initial
Number”) shall be increased to the number obtained by multiplying the
Initial Number by a fraction (A) the numerator of which shall be the sum of (x)
the number of shares of Common Stock of the Company outstanding on such date and
(y) the number of additional shares of Common Stock issued (or into which
convertible securities may be exercised or convert) and (B) the denominator of
which shall be the sum of (I) the number of shares of Common Stock outstanding
on such date and (II) the number of shares of Common Stock which the aggregate
consideration receivable by the Company for the total number of shares of Common
Stock so issued (or into which convertible securities may be exercised or
convert) would purchase at the Market Price on the last trading day preceding
the date of the agreement on pricing such shares (or such convertible
securities); and
(B) the
Exercise Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Exercise Price in effect immediately prior to the date of the
agreement on pricing of such shares (or of such convertible securities) by a
fraction, the numerator of which shall be the number of shares of Common Stock
issuable upon exercise of this Warrant prior to such date and the denominator of
which shall be the number of shares of Common Stock issuable upon exercise of
this Warrant immediately after the adjustment described in clause (A)
above.
For
purposes of the foregoing, the aggregate consideration receivable by the Company
in connection with the issuance of such shares of Common Stock or convertible
securities shall be deemed to be equal to the sum of the net offering price
(including the Fair Market Value of any non-cash consideration and after
deduction of any related expenses payable to third parties) of all such
securities plus the minimum aggregate amount, if any, payable upon exercise or
conversion of any such convertible securities into shares of Common Stock; and
“Permitted
Transactions” shall mean issuances (i) as consideration for or to fund
the acquisition of businesses and/or related assets, (ii) in connection with
employee benefit plans and compensation related arrangements in the ordinary
course and consistent with past practice approved by the Board of Directors,
(iii) in connection with a public or broadly marketed offering and sale of
Common Stock or convertible securities for cash conducted by the Company or its
affiliates pursuant to registration under the Securities Act or Rule 144A
thereunder on a basis consistent with capital raising transactions by comparable
financial institutions and (iv) in connection with the exercise of preemptive
rights on terms existing as of the Issue Date. Any adjustment made pursuant to
this Section 13(B) shall become effective immediately upon the date of such
issuance.
(C) Other Distributions.
In case the Company shall fix a record date for the making of a
distribution to all holders of shares of its Common Stock of securities,
evidences of indebtedness, assets, cash, rights or warrants (excluding Ordinary
Cash Dividends, dividends of its Common Stock and other dividends or
distributions referred to in Section 13(A)), in each such case, the Exercise
Price in effect prior to such record date shall be reduced immediately
thereafter to the price determined by multiplying the Exercise Price in effect
immediately prior to the reduction by the quotient of (x) the Market Price of
the Common Stock on the last trading day preceding the first date on which the
Common Stock trades regular way on the principal
9
national
securities exchange on which the Common Stock is listed or admitted to trading
without the right to receive such distribution, minus the amount of cash and/or
the Fair Market Value of the securities, evidences of indebtedness, assets,
rights or warrants to be so distributed in respect of one share of Common Stock
(such amount and/or Fair Market Value, the “Per Share Fair Market Value”) divided by (y)
such Market Price on such date specified in clause (x); such adjustment shall be
made successively whenever such a record date is fixed. In such event, the
number of Shares issuable upon the exercise of this Warrant shall be increased
to the number obtained by dividing (x) the product of (1) the number of Shares
issuable upon the exercise of this Warrant before such adjustment, and (2) the
Exercise Price in effect immediately prior to the distribution giving rise to
this adjustment by (y) the new Exercise Price determined in accordance with the
immediately preceding sentence. In the case of adjustment for a cash dividend
that is, or is coincident with, a regular quarterly cash dividend, the Per Share
Fair Market Value would be reduced by the per share amount of the portion of the
cash dividend that would constitute an Ordinary Cash Dividend. In the event that
such distribution is not so made, the Exercise Price and the number of Shares
issuable upon exercise of this Warrant then in effect shall be readjusted,
effective as of the date when the Board of Directors determines not to
distribute
such shares, evidences of indebtedness, assets, rights, cash or warrants, as the
case may be, to the Exercise Price that would then be in effect and the number
of Shares that would then be issuable upon exercise of this Warrant if such
record date had not been fixed.
(D) Certain Repurchases of
Common Stock. In case the Company effects a Pro Rata Repurchase of Common
Stock, then the Exercise Price shall be reduced to the price determined by
multiplying the Exercise Price in effect immediately prior to the Effective Date
of such Pro Rata Repurchase by a fraction of which the numerator shall be (i)
the product of (x) the number of shares of Common Stock outstanding immediately
before such Pro Rata Repurchase and (y) the Market Price of a share of Common
Stock on the trading day immediately preceding the first public announcement by
the Company or any of its Affiliates of the intent to effect such Pro Rata
Repurchase, minus (ii) the aggregate purchase price of the Pro Rata Repurchase,
and of which the denominator shall be the product of (i) the number of shares of
Common Stock outstanding immediately prior to such Pro Rata Repurchase minus the
number of shares of Common Stock so repurchased and (ii) the Market Price per
share of Common Stock on the trading day immediately preceding the first public
announcement by the Company or any of its Affiliates of the intent to effect
such Pro Rata Repurchase. In such event, the number of shares of Common Stock
issuable upon the exercise of this Warrant shall be increased to the number
obtained by dividing (x) the product of (1) the number of Shares issuable upon
the exercise of this Warrant before such adjustment, and (2) the Exercise Price
in effect immediately prior to the Pro Rata Repurchase giving rise to this
adjustment by (y) the new Exercise Price determined in accordance with the
immediately preceding sentence. For the avoidance of doubt, no increase to the
Exercise Price or decrease in the number of Shares issuable upon exercise of
this Warrant shall be made pursuant to this Section 13(D).
(E) Business
Combinations. In case of any Business Combination or reclassification of
Common Stock (other than a reclassification of Common Stock referred to in
Section 13(A)), the Warrantholder’s right to receive Shares upon exercise of
this Warrant shall be converted into the right to exercise this Warrant to
acquire the number of shares of stock or other securities or property (including
cash) which the Common Stock issuable (at the time of such Business Combination
or reclassification) upon exercise of this Warrant immediately prior to
such
10
Business
Combination or reclassification would have been entitled to receive upon
consummation of such Business Combination or reclassification; and in any such
case, if necessary, the provisions set forth herein with respect to the rights
and interests thereafter of the Warrantholder shall be appropriately adjusted so
as to be applicable, as nearly as may reasonably be, to the Warrantholder’s
right to exercise this Warrant in exchange for any shares of stock or other
securities or property pursuant to this paragraph. In determining the kind and
amount of stock, securities or the property receivable upon exercise of this
Warrant following the consummation of such Business Combination, if the holders
of Common Stock have the right to elect the kind or amount of consideration
receivable upon consummation of such Business Combination, then the
consideration that the Warrantholder shall be entitled to receive upon exercise
shall be deemed to be the types and amounts of consideration received by the
majority of all holders of the shares of common stock that affirmatively make an
election (or of all such holders if none make an election).
(F) Rounding of Calculations;
Minimum Adjustments. All calculations under this Section 13 shall be made
to the nearest one-tenth (1/10th) of a cent or to the nearest one- hundredth
(1/100th) of a share, as the case may be. Any provision of this Section 13 to
the contrary notwithstanding, no adjustment in the Exercise Price or the number
of Shares into which this Warrant is exercisable shall be made if the amount of
such adjustment would be less than $0.01 or one-tenth (1/10th) of a share of
Common Stock, but any such amount shall be carried forward and an adjustment
with respect thereto shall be made at the time of and together with any
subsequent adjustment which, together with such amount and any other amount or
amounts so carried forward, shall aggregate $0.01 or 1/10th of a share of Common
Stock, or more.
(G) Timing of Issuance of
Additional Common Stock Upon Certain Adjustments. In any case in which
the provisions of this Section 13 shall require that an adjustment shall become
effective immediately after a record date for an event, the Company may defer
until the occurrence of such event (i) issuing to the Warrantholder of this
Warrant exercised after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such exercise by reason of
the adjustment required by such event over and above the shares of Common Stock
issuable upon such exercise before giving effect to such adjustment and (ii)
paying to such Warrantholder any amount of cash in lieu of a fractional share of
Common Stock; provided,
however, that the
Company upon request shall deliver to such Warrantholder a due bill or other
appropriate instrument evidencing such Warrantholder’s right to receive such
additional shares, and such cash, upon the occurrence of the event requiring
such adjustment.
(H) Completion of Qualified
Equity Offering. In the event the Company (or any successor by Business
Combination) completes one or more Qualified Equity Offerings on or prior to
December 31, 2009 that result in the Company (or any such successor ) receiving
aggregate gross proceeds of not less than 100% of the aggregate liquidation
preference of the Preferred Shares (and any preferred stock issued by any such
successor to the Original Warrantholder under the CPP), the number of shares of
Common Stock underlying the portion of this Warrant then held by the Original
Warrantholder shall be thereafter reduced by a number of shares of Common Stock
equal to the product of (i) 0.5 and (ii) the number of shares
underlying
11
the
Warrant on the Issue Date (adjusted to take into account all other theretofore
made adjustments pursuant to this Section 13).
(I) Other Events. For so
long as the Original Warrantholder holds this Warrant or any portion thereof, if
any event occurs as to which the provisions of this Section 13 are not strictly
applicable or, if strictly applicable, would not, in the good faith judgment of
the Board of Directors of the Company, fairly and adequately protect the
purchase rights of the Warrants in accordance with the essential intent and
principles of such provisions, then the Board of Directors shall make such
adjustments in the application of such provisions, in accordance with such
essential intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board of Directors, to protect such purchase rights as
aforesaid. The Exercise Price or the number of Shares into which this Warrant is
exercisable shall not be adjusted in the event of a change in the par value of
the Common Stock or a change in the jurisdiction of incorporation of the
Company.
(J) Statement Regarding
Adjustments. Whenever the Exercise Price or the number of Shares into
which this Warrant is exercisable shall be adjusted as provided in Section 13,
the Company shall forthwith file at the principal office of the Company a
statement showing in reasonable detail the facts requiring such adjustment and
the Exercise Price that shall be in effect and the number of Shares into which
this Warrant shall be exercisable after such adjustment, and the Company shall
also cause a copy of such statement to be sent by mail, first class postage
prepaid, to each Warrantholder at the address appearing in the Company’s
records.
(K) Notice of Adjustment
Event. In the event that the Company shall propose to take any action of
the type described in this Section 13 (but only if the action of the type
described in this Section 13 would result in an adjustment in the Exercise Price
or the number of Shares into which this Warrant is exercisable or a change in
the type of securities or property to be delivered upon exercise of this
Warrant), the Company shall give notice to the Warrantholder, in the manner set
forth in Section 13(J), which notice shall specify the record date, if any, with
respect to any such action and the approximate date on which such action is to
take place. Such notice shall also set forth the facts with respect thereto as
shall be reasonably necessary to indicate the effect on the Exercise Price and
the number, kind or class of shares or other securities or property which shall
be deliverable upon exercise of this Warrant. In the case of any action which
would require the fixing of a record date, such notice shall be given at least
10 days prior to the date so fixed, and in case of all other action, such notice
shall be given at least 15 days prior to the taking of such proposed action.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any such action.
(L) Proceedings Prior to Any
Action Requiring Adjustment. As a condition precedent to the taking of
any action which would require an adjustment pursuant to this Section 13, the
Company shall take any action which may be necessary, including obtaining
regulatory, New York Stock Exchange, NASDAQ Stock Market or other applicable
national securities exchange or stockholder approvals or exemptions, in order
that the Company may thereafter validly and legally issue as fully paid and
nonassessable all shares of Common Stock that the Warrantholder is entitled to
receive upon exercise of this Warrant pursuant to this Section 13.
12
(M) Adjustment Rules. Any
adjustments pursuant to this Section 13 shall be made successively whenever an
event referred to herein shall occur. If an adjustment in Exercise Price made
hereunder would reduce the Exercise Price to an amount below par value of the
Common Stock, then such adjustment in Exercise Price made hereunder shall reduce
the Exercise Price to the par value of the Common Stock.
14. Exchange. At any time
following the date on which the shares of Common Stock of the Company are no
longer listed or admitted to trading on a national securities exchange (other
than in connection with any Business Combination), the Original Warrantholder
may cause the Company to exchange all or a portion of this Warrant for an
economic interest (to be determined by the Original Warrantholder after
consultation with the Company) of the Company classified as permanent equity
under U.S. GAAP having a value equal to the Fair Market Value of the portion of
the Warrant so exchanged. The Original Warrantholder shall calculate any Fair
Market Value required to be calculated pursuant to this Section 14, which shall
not be subject to the Appraisal Procedure.
15. No Impairment. The
Company will not, by amendment of its Charter or through any reorganization,
transfer of assets, consolidation, merger, 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 to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Warrant and in taking of all such action as may be
necessary or appropriate in order to protect the rights of the
Warrantholder.
16. Governing Law. This Warrant will 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
otherwise in accordance with the laws of the State of New York applicable
to contracts made and to
be performed entirely within such State. Each of the Company and the Warrantholder agrees (a) to
submit to the exclusive jurisdiction and venue of the United States District Court for the
District of Columbia for any civil action, suit or proceeding arising out of or relating
to this Warrant or the transactions contemplated hereby, and (b) that notice may be
served upon the Company at the address in Section 20 below and upon the Warrantholder at
the address for the Warrantholder set forth in the registry maintained by the Company
pursuant to Section 9 hereof. To the extent permitted by applicable law, each of
the Company and the Warrantholder hereby unconditionally waives trial by jury in any civil
legal action or proceeding relating to the Warrant or the transactions contemplated hereby or
thereby.
17. Binding Effect. This
Warrant shall be binding upon any successors or assigns of the
Company.
18. Amendments. This
Warrant may be amended and the observance of any term of this Warrant may be
waived only with the written consent of the Company and the
Warrantholder.
19 . Prohibited Actions.
The Company agrees that it will not take any action which would entitle the
Warrantholder to an adjustment of the Exercise Price if the total number of
shares of Common Stock issuable after such action upon exercise of this Warrant,
together with
13
all
shares of Common Stock then outstanding and all shares of Common Stock then
issuable upon the exercise of all outstanding options, warrants, conversion and
other rights, would exceed the total number of shares of Common Stock then
authorized by its Charter.
20. Notices. Any notice,
request, instruction or other document to be given hereunder by any party to the
other will be in writing and will be deemed to have been duly given (a) on the
date of delivery if delivered personally, or by facsimile, upon confirmation of
receipt, or (b) on the second business day following the date of dispatch if
delivered by a recognized next day courier service. All notices hereunder shall
be delivered as set forth in Item 8 of Schedule A hereto, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice.
21. Entire Agreement.
This Warrant, the forms attached hereto and Schedule A hereto (the terms of
which are incorporated by reference herein), and the Letter Agreement (including
all documents incorporated therein), contain the entire agreement between the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or undertakings with respect thereto.
[Remainder
of page intentionally left blank]
14
|
|
[Form of Notice of
Exercise]
Date:
___________
|
TO: [Company]
RE: Election to Purchase
Common Stock
The
undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby agrees to subscribe for and purchase the number of shares of the Common
Stock set forth below covered by such Warrant. The undersigned, in accordance
with Section 3 of the Warrant, hereby agrees to pay the aggregate Exercise Price
for such shares of Common Stock in the manner set forth below. A new warrant
evidencing the remaining shares of Common Stock covered by such Warrant, but not
yet subscribed for and purchased, if any, should be issued in the name set forth
below.
Number of
Shares of Common Stock__________________________
Method of
Payment of Exercise Price (note if cashless exercise pursuant to Section 3(i) of
the Warrant or cash exercise pursuant to Section 3(ii) of the Warrant, with
consent of the Company and the Warrantholder)
__________________________
Aggregate
Exercise
Price:
__________________________
Holder: __________________________
By:
__________________________
Name:
__________________________
Title:
__________________________
15
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a
duly authorized officer.
Dated:
__________
| COMPANY: _____________ | |
| By: __________________________ | |
| Name: | |
| Title: | |
| Attest: | |
| By: __________________________ | |
| Name: | |
| Title: |
[Signature
Page to Warrant]
16
SCHEDULE
A
| Item 1 | |
| Name: | Banner Corporation |
| Corporate or other organizational form: | Corporation |
| Jurisdiction of organization: | Washington |
Item 2
Exercise
Price: $10.89
Item 3
Issue
Date: November
21, 2008
Item 4
|
Amount
of last dividend declared prior to the Issue Date:
|
Dividend
of $0.05 per share declared
on
September 23, 2008 to
shareholders
of record on October 6,
2008
and payable on October 15,
2008.
|
Item 5
Date of
Letter Agreement between the Company and the United States Department of the
Treasury: November 21, 2008
Item 6
Number of
shares of Common
Stock: 1,707,989
| Item 7 | |
| Company’s address: | 10 South First Avenue |
| Walla Walla, Washington 99362 |
| Item 8 | |
| Notice information: | D. Michael Jones |
| President and Chief Executive Officer | |
| Banner Corporation | |
| 10 South First Avenue | |
| Walla Walla, Washington 99362 |
Exhibit
10.1
UNITED STATES DEPARTMENT OF THE TREASURY
1500
PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C.
20220
Dear
Ladies and Gentlemen:
The
company set forth on the signature page hereto (the “Company”) intends to issue
in a private placement the number of shares of a series of its preferred stock
set forth on Schedule A hereto (the “Preferred Shares”) and a
warrant to purchase the number of shares of its common stock set forth on
Schedule A hereto (the “Warrant” and, together with
the Preferred Shares, the “Purchased Securities”) and
the United States Department of the Treasury (the “Investor”) intends to
purchase from the Company the Purchased Securities.
The
purpose of this letter agreement is to confirm the terms and conditions of the
purchase by the Investor of the Purchased Securities. Except to the extent
supplemented or superseded by the terms set forth herein or in the Schedules
hereto, the provisions contained in the Securities Purchase Agreement – Standard
Terms attached hereto as Exhibit A (the “Securities Purchase Agreement”)
are incorporated by reference herein. Terms that are defined in the
Securities Purchase Agreement are used in this letter agreement as so defined.
In the event of any inconsistency between this letter agreement and the
Securities Purchase Agreement, the terms of this letter agreement shall
govern.
Each of
the Company and the Investor hereby confirms its agreement with the other party
with respect to the issuance by the Company of the Purchased Securities and the
purchase by the Investor of the Purchased Securities pursuant to this letter
agreement and the Securities Purchase Agreement on the terms specified on
Schedule A hereto.
This
letter agreement (including the Schedules hereto) and the Securities Purchase
Agreement (including the Annexes thereto) and the Warrant constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject matter hereof. This letter agreement constitutes the
“Letter Agreement” referred to in the Securities Purchase
Agreement.
This
letter agreement 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 agreement. Executed signature
pages to this letter agreement may be delivered by facsimile and such facsimiles
will be deemed as sufficient as if actual signature pages had been
delivered.
* *
*
In
witness whereof, this letter agreement has been duly executed and delivered by
the duly authorized representatives of the parties hereto as of the date written
below.
| UNITED STATES DEPARTMENT OF THE TREASURY | |
| By: /s/Neel Kashkari | |
| Name: Neel Kashkari | |
| Title: Interim Assistant Secretary | |
| for Financial Stability | |
| COMPANY: Banner Corporation | |
| By: /s/D. Michael Jones | |
| D. Michael Jones | |
| President and Chief Executive Officer |
Date:
November 21, 2008
EXHIBIT
A
SECURITIES PURCHASE
AGREEMENT
EXHIBIT
A
SECURITIES
PURCHASE AGREEMENT
STANDARD
TERMS
TABLE
OF CONTENTS
|
|
Page
|
||
|
Article
I
|
|||
|
Purchase;
Closing
|
|||
| 1.1 | Purchase |
1
|
|
| 1.2 | Closing |
2
|
|
| 1.3 | Interpretation |
4
|
|
|
Article
II
|
|||
|
Representations
and Warranties
|
|||
| 2.1 | Disclosure |
4
|
|
| 2.2 | Representations and Warranties of the Company |
5
|
|
|
Article
III
|
|||
|
Covenants
|
|||
|
13
|
|||
| 3.1 | Commercially Reasonable Efforts |
14
|
|
| 3.2 | Expenses |
14
|
|
| 3.3 | Sufficiency of Authorized Common Stock; Exchange Listing |
15
|
|
| 3.4 | Certain Notifications Until Closing |
15
|
|
| 3.5 | Access, Information and Confidentiality |
|
|
|
Article
IV
|
|||
|
Additional
Agreements
|
|||
| 4.1 | Purchase for Investment |
16
|
|
| 4.2 | Legends |
16
|
|
| 4.3 | Certain Transactions |
18
|
|
| 4.4 |
Transfer
of Purchased Securities and Warrant Shares; Restrictions on Exercise of
the
Warrant
|
18
|
|
| 4.5 | Registration Rights |
19
|
|
| 4.6 | Voting of Warrant Shares |
30
|
|
| 4.7 | Depositary Shares |
31
|
|
| 4.8 | Restriction on Dividends and Repurchases |
31
|
|
| 4.9 | Repurchase of Investor Securities |
32
|
|
| 4.10 | Executive Compensation |
33
|
|
-i-
Article
V
Miscellaneous
|
5.1
|
Termination
|
34
|
|
|
5.2
|
Survival
of Representations and
Warranties
|
34
|
|
|
5.3
|
Amendment
|
34
|
|
|
5.4
|
Waiver
of
Conditions
|
34
|
|
|
5.5
|
Governing Law: Submission to
Jurisdiction,
Etc.
|
35
|
|
|
5.6
|
Notices
|
35
|
|
|
5.7
|
Definitions
|
35
|
|
|
5.8
|
Assignment
|
36
|
|
|
5.9
|
Severability
|
36
|
|
|
5.10
|
No
Third Party
Beneficiaries
|
36
|
-ii-
|
LIST OF
ANNEXES
|
||
| ANNEX A: | FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK ANNEX B: FORM OF WAIVER | |
| ANNEX B: | FORM OF WAIVER | |
| ANNEX C: | FORM OF OPINION | |
| ANNEX D: | FORM OF WARRANT | |
|
-iii-
|
INDEX
OF DEFINED TERMS
|
Term
|
Location
of
Definition
|
|
| Affiliate | 5.7(b) | |
| Agreement | Recitals | |
| Appraisal Procedure | 4.9(c)(i) | |
| Appropriate Federal Banking Agency | 2.2(s) | |
| Bankruptcy Exceptions | 2.2(d) | |
| Benefit Plans | 1 .2(d)(iv) | |
| Board of Directors | 2.2(f) | |
| Business Combination | 4.4 | |
| business day | 1.3 | |
| Capitalization Date | 2.2(b) | |
| Certificate of Designations | 1.2(d) (iii) | |
| Charter | 1 .2 (d)(iii) | |
| Closing | 1.2 (a) | |
| Closing Date | 1.2(a) | |
| Code | 2.2 (n) | |
| Common Stock | Recitals | |
| Company | Recitals | |
| Company Financial Statements | 2.2(h) | |
| Company Material Adverse Effect | 2.1(a) | |
| Company Reports | 2.2(i)(i) | |
| Company Subsidiary; Company Subsidiaries | 2.2(i)(i) | |
| control; controlled by; under common control with | 5.7(b) | |
| Controlled Group | 2.2(n) | |
| CPP | Recitals | |
| EESA | 1.2(d)(iv) | |
| ERISA | 2.2(n) | |
| Exchange Act | 2.1(b) | |
| Fair Market Value | 4.9 (c)(ii) | |
| GAAP | 2.1(a) | |
| Governmental Entities | 1.2(c) | |
| Holder | 4.5(k)(i) | |
| Holders’ Counsel | 4.5(k)(ii) | |
| Indemnitee | 4. 5(g)(i) | |
| Information | 3.5(b) | |
| Initial Warrant Shares | Recitals | |
| Investor | Recitals | |
| Junior Stock | 4.8(c) | |
| knowledge of the Company; Company’s knowledge | 5.7(c) | |
| Last Fiscal Year | 2.1(b) | |
| Letter Agreement | Recitals | |
| officers | 5.7(c) |
|
-iv-
|
|
Term
|
Location
of
Definition
|
|
|
Parity
Stock
|
4.8(c) | |
| Pending Underwritten Offering | 4.5(l) | |
|
Permitted
Repurchases
|
4. 8(a)(ii) | |
| Piggyback Registration | 4.5(a)(iv) | |
| Plan | 2.2(n) | |
| Preferred Shares | Recitals | |
| Preferred Stock | Recitals | |
| Previously Disclosed | 2.1(b) | |
| Proprietary Rights | 2.2(u) | |
| Purchase | Recitals | |
| Purchase Price | 1.1 | |
| Purchased Securities | Recitals | |
| Qualified Equity Offering | 4.4 | |
| register; registered; registration | 4.5(k)(iii) | |
| Registrable Securities | 4.5(k)(iv) | |
| Registration Expenses | 4.5(k)(v) | |
| Regulatory Agreement | 2.2(s) | |
| Rule 144; Rule 144A; Rule 159A; Rule 405; Rule 415 | 4.5(k)(vi) | |
| Schedules | Recitals | |
| SEC | 2.1(b) | |
| Securities Act | 2.2(a) | |
| Selling Expenses | 4.5(k)(vii) | |
| Senior Executive Officers | 4.10 | |
| Share Dilution Amount | 4.8(a)(ii) | |
| Shelf Registration Statement | 4. 5(a)(ii) | |
| Signing Date | 2.1(a) | |
| Special Registration | 4.5(i) | |
| Stockholder Proposals | 3.1(b) | |
| subsidiary | 5.8(a) | |
| Tax; Taxes | 2.2(o) | |
| Transfer | 4.4 | |
| Warrant | Recitals | |
| Warrant Shares | 2.2(d) |
-v-
SECURITIES
PURCHASE AGREEMENT – STANDARD TERMS
Recitals:
WHEREAS,
the United States Department of the Treasury (the “Investor”) may from time to
time agree to purchase shares of preferred stock and warrants from eligible
financial institutions which elect to participate in the Troubled Asset Relief
Program Capital Purchase Program (“CPP”);
WHEREAS,
an eligible financial institution electing to participate in the CPP and issue
securities to the Investor (referred to herein as the “Company”) shall enter into a
letter agreement (the “Letter
Agreement”) with the Investor which incorporates this Securities Purchase
Agreement – Standard Terms;
WHEREAS,
the Company agrees to expand the flow of credit to U.S. consumers and businesses
on competitive terms to promote the sustained growth and vitality of the U.S.
economy;
WHEREAS,
the Company agrees to work diligently, under existing programs, to modify the
terms of residential mortgages as appropriate to strengthen the health of the
U.S. housing market;
WHEREAS,
the Company intends to issue in a private placement the number of shares of the
series of its Preferred Stock (“Preferred Stock”) set forth
on Schedule A
to the Letter Agreement (the “Preferred Shares”) and a
warrant to purchase the number of shares of its Common Stock (“Common Stock”) set forth on
Schedule A to
the Letter Agreement (the “Initial Warrant Shares”) (the “Warrant” and, together with
the Preferred Shares, the “Purchased Securities”) and the Investor
intends to purchase (the “Purchase”) from the Company
the Purchased Securities; and
WHEREAS,
the Purchase will be governed by this Securities Purchase Agreement – Standard
Terms and the Letter Agreement, including the schedules thereto (the “Schedules”), specifying
additional terms of the Purchase. This Securities Purchase Agreement – Standard
Terms (including the Annexes hereto) and the Letter Agreement (including the
Schedules thereto) are together referred to as this “Agreement”. All references
in this Securities Purchase Agreement – Standard Terms to “Schedules” are to the
Schedules attached to the Letter Agreement.
NOW, THEREFORE, in
consideration of the premises, and of the representations, warranties, covenants
and agreements set forth herein, the parties agree as follows:
Article
I
Purchase;
Closing
1.1 Purchase. On the
terms and subject to the conditions set forth in this Agreement, the
Company agrees to sell to the Investor, and the Investor agrees to purchase from
the Company, at the Closing (as hereinafter defined), the Purchased Securities
for the price set forth on Schedule A (the
“Purchase
Price”).
1.2 Closing.
(a) On the
terms and subject to the conditions set forth in this Agreement, the closing of
the Purchase (the “Closing”) will take place at
the location specified in Schedule A, at the
time and on the date set forth in Schedule A or as soon
as practicable thereafter, or at such other place, time and date as shall be
agreed between the Company and the Investor. The time and date on which the
Closing occurs is referred to in this Agreement as the “Closing Date”.
(b) Subject
to the fulfillment or waiver of the conditions to the Closing in this Section
1.2, at the Closing the Company will deliver the Preferred Shares and the
Warrant, in each case as evidenced by one or more certificates dated the Closing
Date and bearing appropriate legends as hereinafter provided for, in exchange
for payment in full of the Purchase Price by wire transfer of immediately
available United States funds to a bank account designated by the Company on
Schedule
A.
(c) The
respective obligations of each of the Investor and the Company to consummate the
Purchase are subject to the fulfillment (or waiver by the Investor and the
Company, as applicable) prior to the Closing of the conditions that (i) any
approvals or authorizations of all United States and other governmental,
regulatory or judicial authorities (collectively, “Governmental Entities”)
required for the consummation of the Purchase shall have been obtained or made
in form and substance reasonably satisfactory to each party and shall be in full
force and effect and all waiting periods required by United States and other
applicable law, if any, shall have expired and (ii) no provision of any
applicable United States or other law and no judgment, injunction, order or
decree of any Governmental Entity shall prohibit the purchase and sale of the
Purchased Securities as contemplated by this Agreement.
(d) The
obligation of the Investor to consummate the Purchase is also subject to the
fulfillment (or waiver by the Investor) at or prior to the Closing of each of
the following conditions:
|
|
|
(i) (A) the
representations and warranties of the Company set forth in (x) Section
2.2(g) of this Agreement shall be true and correct in all respects as
though made on and as of the Closing Date, (y) Sections 2.2(a) through (f)
shall be true and correct in all material respects as though made on and
as of the Closing Date (other than representations
and warranties that by their terms speak as of another date, which
representations and warranties shall be true and correct in all material
respects as of such other date) and (z) Sections 2.2(h) through (v)
(disregarding all qualifications or limitations set forth in such
representations and warranties as to “materiality”, “Company Material
Adverse Effect” and words of similar import) shall be true and correct as
though made on and as of the Closing Date (other than representations and
warranties that by their terms speak as of another date, which
representations and warranties shall be true and correct as of such other
date), except to the extent that the failure of such representations and
warranties referred to in this Section 1 .2(d)(i)(A)(z) to be so true and
correct, individually or in the aggregate, does not have and would not
reasonably be expected to have a Company Material Adverse Effect and (B)
the Company shall have
|
2
performed
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Closing;
(ii) the
Investor shall have received a certificate signed on behalf of the Company by a
senior executive officer certifying to the effect that the conditions set forth
in Section 1 .2(d)(i) have been satisfied;
(iii) the Company
shall have duly adopted and filed with the Secretary of State of its
jurisdiction of organization or other applicable Governmental Entity the
amendment to its certificate or articles of incorporation, articles of
association, or similar organizational document (“Charter”) in substantially
the form attached hereto as Annex A (the “Certificate of Designations”)
and such filing shall have been accepted;
(iv) (A) the
Company shall have effected such changes to its compensation, bonus, incentive
and other benefit plans, arrangements and agreements (including golden
parachute, severance and employment agreements) (collectively, “Benefit Plans”) with respect
to its Senior Executive Officers (and to the extent necessary for such changes
to be legally enforceable, each of its Senior Executive Officers shall have duly
consented in writing to such changes), as may be necessary, during the period
that the Investor owns any debt or equity securities of the Company acquired
pursuant to this Agreement or the Warrant, in order to comply with Section
111(b) of the Emergency Economic Stabilization Act of 2008 (“EESA”) as implemented by
guidance or regulation thereunder that has been issued and is in effect as of
the Closing Date, and (B) the Investor shall have received a certificate signed
on behalf of the Company by a senior executive officer certifying to the effect
that the condition set forth in Section 1 .2(d)(iv)(A) has been
satisfied;
(v) each of the
Company’s Senior Executive Officers shall have delivered to the Investor a
written waiver in the form attached hereto as Annex B releasing the
Investor from any claims that such Senior Executive Officers may otherwise have
as a result of the issuance, on or prior to the Closing Date, of any regulations
which require the modification of, and the agreement of the Company hereunder to
modify, the terms of any Benefit Plans with respect to its Senior Executive
Officers to eliminate any provisions of such Benefit Plans that would not be in
compliance with the requirements of Section 111(b) of the EESA as implemented by
guidance or regulation thereunder that has been issued and is in effect as of
the Closing Date;
(vi) the
Company shall have delivered to the Investor a written opinion from counsel to
the Company (which may be internal counsel), addressed to the Investor and dated
as of the Closing Date, in substantially the form attached hereto as Annex C;
(vii) the
Company shall have delivered certificates in proper form or, with the prior
consent of the Investor, evidence of shares in book-entry form, evidencing the
Preferred Shares to Investor or its designee(s); and
-3-
(viii) the Company
shall have duly executed the Warrant in substantially the form attached hereto
as Annex D and
delivered such executed Warrant to the Investor or its designee(s).
1.3 Interpretation. When
a reference is made in this Agreement to “Recitals,” “Articles,”
“Sections,” or “Annexes” such reference shall be to a Recital, Article or
Section of, or Annex to, this Securities Purchase Agreement – Standard Terms,
and a reference to “Schedules” shall be to a Schedule to the Letter Agreement,
in each case, unless otherwise indicated. The terms defined in the singular have
a comparable meaning when used in the plural, and vice versa. References to
“herein”, “hereof”, “hereunder” and the like refer to this Agreement as a whole
and not to any particular section or provision, unless the context requires
otherwise. The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement. Whenever the
words “include,” "includes” or “including” are used in this Agreement, they
shall be deemed followed by the words “without limitation.” No rule of
construction against the draftsperson shall be applied in connection with the
interpretation or enforcement of this Agreement, as this Agreement is the
product of negotiation between sophisticated parties advised by counsel. All
references to “$” or “dollars” mean the lawful currency of the United States of
America. Except as expressly stated in this Agreement, all references to any
statute, rule or regulation are to the statute, rule or regulation as amended,
modified, supplemented or replaced from time to time (and, in the case of
statutes, include any rules and regulations promulgated under the statute) and
to any section of any statute, rule or regulation include any successor to the
section. References to a “business day” shall mean any
day except Saturday, Sunday and any day on which banking institutions in the
State of New York generally are authorized or required by law or other
governmental actions to close.
Article
II
Representations
and Warranties
2.1 Disclosure.
(a) “Company Material Adverse
Effect” means a material adverse effect on (i) the business,
results of operation or financial condition of the Company and its consolidated
subsidiaries taken as a whole; provided, however, that Company
Material Adverse Effect shall not be deemed to include the effects of (A)
changes after the date of the Letter Agreement (the “Signing Date”) in general
business, economic or market conditions (including changes generally in
prevailing interest rates, credit availability and liquidity, currency exchange
rates and price levels or trading volumes in the United States or foreign
securities or credit markets), or any outbreak or escalation of hostilities,
declared or undeclared acts of war or terrorism, in each case generally
affecting the industries in which the Company and its subsidiaries operate, (B)
changes or proposed changes after the Signing Date in generally accepted
accounting principles in the United States (“GAAP”) or regulatory
accounting requirements, or authoritative interpretations thereof, (C) changes
or proposed changes after the Signing Date in securities, banking and other laws
of general applicability or related policies or interpretations of Governmental
Entities (in the case of each of these clauses (A), (B) and (C), other than
changes
-4-
or
occurrences to the extent that such changes or occurrences have or would
reasonably be expected to have a materially disproportionate adverse effect on
the Company and its consolidated subsidiaries taken as a whole relative to
comparable U.S. banking or financial services organizations), or (D) changes in
the market price or trading volume of the Common Stock or any other equity,
equity-related or debt securities of the Company or its consolidated
subsidiaries (it being understood and agreed that the exception set forth in
this clause (D) does not apply to the underlying reason giving rise to or
contributing to any such change); or (ii) the ability of the Company to
consummate the Purchase and the other transactions contemplated by this
Agreement and the Warrant and perform its obligations hereunder or thereunder on
a timely basis.
(b) “Previously Disclosed” means
information set forth or incorporated in the Company’s
Annual Report on Form 10-K for the most recently completed fiscal year of the
Company filed with the Securities and Exchange Commission (the “SEC”) prior to the Signing
Date (the “Last Fiscal
Year”) or in its other reports and forms filed with or furnished to the
SEC under Sections 13(a), 14(a) or 15(d) of the Securities Exchange Act of 1934
(the “Exchange Act”) on or after the last
day of the Last Fiscal Year and prior to the Signing Date.
2.2 Representations and
Warranties of the Company. Except as Previously Disclosed,the
Company represents and warrants to the Investor that as of the Signing Date and
as of the Closing Date (or such other date specified herein):
(a)
Organization, Authority and
Significant Subsidiaries. The Company has been duly incorporated and is
validly existing and in good standing under the laws of its jurisdiction of
organization, with the necessary power and authority to own its properties and
conduct its business in all material respects as currently conducted, and except
as has not, individually or in the aggregate, had and would not reasonably be
expected to have a Company Material Adverse Effect, has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification; each subsidiary of
the Company that is a “significant subsidiary” within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act of 1933 (the “Securities Act”) has been
duly organized and is validly existing in good standing under the laws of its
jurisdiction of organization. The Charter and bylaws of the Company, copies of
which have been provided to the Investor prior to the Signing Date, are true,
complete and correct copies of such documents as in full force and effect as of
the Signing Date.
(b) Capitalization. The
authorized capital stock of the Company, and the outstanding capital stock of
the Company (including securities convertible into, or exercisable or
exchangeable for, capital stock of the Company) as of the most recent fiscal
month-end preceding the Signing Date (the “Capitalization Date”) is set
forth on Schedule
B. The outstanding shares of capital stock of the Company have been duly
authorized and are validly issued and outstanding, fully paid and nonassessable,
and subject to no preemptive rights (and were not issued in violation of any
preemptive rights). Except as provided in the Warrant, as of the Signing Date,
the Company does not have outstanding any securities or other obligations
providing the holder the right to acquire Common Stock that is not reserved for
issuance as
-5-
specified
on Schedule B,
and the Company has not made any other commitment to authorize, issue or sell
any Common Stock. Since the Capitalization Date, the Company has not issued any
shares of Common Stock, other than (i) shares issued upon the exercise of stock
options or delivered under other equity-based awards or other convertible
securities or warrants which were issued and outstanding on the Capitalization
Date and disclosed on Schedule B and (ii)
shares disclosed on Schedule
B.
(c) Preferred Shares. The
Preferred Shares have been duly and validly authorized, and, when issued and
delivered pursuant to this Agreement, such Preferred Shares will be duly and
validly issued and fully paid and non-assessable, will not be issued in
violation of any preemptive rights, and will rank pari passu with or senior to
all other series or classes of Preferred Stock, whether or not issued or
outstanding, with respect to the payment of dividends and the distribution of
assets in the event of any dissolution, liquidation or winding up of the
Company.
(d) The Warrant and Warrant
Shares. The Warrant has been duly authorized and, when executed and
delivered as contemplated hereby, will constitute a valid and legally binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or in equity
(“Bankruptcy
Exceptions”). The shares of Common Stock issuable upon exercise of the
Warrant (the “Warrant
Shares”) have been duly authorized and reserved for issuance upon
exercise of the Warrant and when so issued in accordance with the terms of the
Warrant will be validly issued, fully paid and non-assessable, subject, if
applicable, to the approvals of its stockholders set forth on Schedule
C.
(e) Authorization,
Enforceability.
|
(i) The
Company has the corporate power and authority to execute and deliver this
Agreement and the Warrant and, subject, if applicable, to the approvals of
its stockholders
set forth on Schedule C, to
carry out its obligations hereunder and thereunder (which includes the
issuance of the Preferred Shares, Warrant and Warrant Shares).
The execution, delivery and performance by the Company of this Agreement
and the Warrant and the consummation of the transactions contemplated
hereby and thereby
have been duly authorized by all necessary corporate action on the part of
the Company and its stockholders, and no further approval or authorization
is required on the
part of the Company, subject, in each case, if applicable, to the
approvals of its stockholders set forth on Schedule C.
This Agreement is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to the Bankruptcy Exceptions.
|
|
|
(ii) The
execution, delivery and performance by the Company of this Agreement and
the Warrant and the consummation of the transactions contemplated hereby
and thereby
and compliance by the Company with the provisions hereof
and
|
-6-
|
thereof,
will not (A) violate, conflict with, or result in a breach of any
provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of
termination or acceleration of, or result in the creation of, any lien,
security interest, charge or encumbrance upon any of the properties or
assets of
the Company or any Company Subsidiary under any of the terms, conditions
or provisions of (i) subject, if applicable, to the approvals of the
Company’s stockholders set forth
on Schedule
C, its organizational documents or (ii) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which the Company or any Company Subsidiary is a party or by
which it or any Company Subsidiary may be bound, or to which the Company
or any Company Subsidiary or any of the properties or assets of the
Company or any Company Subsidiary may be subject, or (B) subject to
compliance with the statutes and regulations referred to in the next
paragraph, violate any statute, rule or regulation or any judgment,
ruling, order, writ, injunction or decree applicable to the Company or any
Company Subsidiary or any of their respective properties or assets except,
in the case of clauses (A)(ii) and (B), for those occurrences that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Company Material Adverse
Effect.
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| (iii) Other than the filing of the Certificate of Designations with the Secretary of State of its jurisdiction of organization or other applicable Governmental Entity, any current report on Form 8-K required to be filed with the SEC, such filings and approvals as are required to be made or obtained under any state “blue sky” laws, the filing of any proxy statement contemplated by Section 3.1 and such as have been made or obtained, no notice to, filing with, exemption or review by, or authorization, consent or approval of, any Governmental Entity is required to be made or obtained by the Company in connection with the consummation by the Company of the Purchase except for any such notices, filings, exemptions, reviews, authorizations, consents and approvals the failure of which to make or obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. |
(f) Anti-takeover Provisions and
Rights Plan. The Board of Directors of the Company (the “Board of Directors”) has
taken all necessary action to ensure that the transactions contemplated by this
Agreement and the Warrant and the consummation of the transactions contemplated
hereby and thereby, including the exercise of the Warrant in accordance with its
terms, will be exempt from any anti-takeover or similar provisions of the
Company’s Charter and bylaws, and any other provisions of any applicable
“moratorium”, “control share”, “fair price”, “interested stockholder” or other
anti-takeover laws and regulations of any jurisdiction. The Company has taken
all actions necessary to render any stockholders’ rights plan of the Company
inapplicable to this Agreement and the Warrant and the consummation of the
transactions contemplated hereby and thereby, including the exercise of the
Warrant by the Investor in accordance with its terms.
(g) No Company Material Adverse
Effect. Since the last day of the last completed fiscal period for which
the Company has filed a Quarterly Report on Form 10-Q or an Annual
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(h) Company Financial
Statements. Each of the consolidated financial statements of the Company
and its consolidated subsidiaries (collectively the “Company Financial Statements”) included or
incorporated by reference in the Company Reports filed with the SEC since
December 31, 2006, present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated therein (or if amended prior to the Signing Date, as of the date
of such amendment) and the consolidated results of their operations for the
periods specified therein; and except as stated therein, such financial
statements (A) were prepared in conformity with GAAP applied on a consistent
basis (except as may be noted therein), (B) have been prepared from, and are in
accordance with, the books and records of the Company and the Company
Subsidiaries and (C) complied as to form, as of their respective dates of filing
with the SEC, in all material respects with the applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto.
(i) Reports.
| (i) Since December 31, 2006, the Company and each subsidiary of the Company (each a “Company Subsidiary” and, collectively, the “Company Subsidiaries”) has timely filed all reports, registrations, documents, filings, statements and submissions, together with any amendments thereto, that it was required to file with any Governmental Entity (the foregoing, collectively, the “Company Reports”) and has paid all fees and assessments due and payable in connection therewith, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of their respective dates of filing, the Company Reports complied in all material respects with all statutes and applicable rules and regulations of the applicable Governmental Entities. In the case of each such Company Report filed with or furnished to the SEC, such Company Report (A) did not, as of its date or if amended prior to the Signing Date, as of the date of such amendment, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and (B) complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act. With respect to all other Company Reports, the Company Reports were complete and accurate in all material respects as of their respective dates. No executive officer of the Company or any Company Subsidiary has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act of 2002. | |
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(ii) The
records, systems, controls, data and information of the Company and the
Company Subsidiaries are recorded, stored, maintained and operated under
means (including
any electronic, mechanical or photographic process, whether computerized
or not) that are under the exclusive ownership and direct control of the
Company or the
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Company
Subsidiaries or their accountants (including all means of access thereto and
therefrom), except for any non-exclusive ownership and non-direct control that
would not reasonably
be expected to have a material adverse effect on the system of internal
accounting controls described below in this Section 2.2(i)(ii). The Company (A)
has implemented and maintains disclosure controls and procedures (as defined in
Rule 1
3a- 15(e) of the Exchange Act) to ensure that material information relating to
the Company, including the consolidated Company Subsidiaries, is made known to
the chief executive officer and the chief financial officer of the Company by
others within those entities, and (B) has disclosed, based on its most recent
evaluation prior to the Signing Date, to
the Company’s outside auditors and the audit committee of the Board of Directors
(x) any significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting (as defined in Rule
13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information and (y) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal
controls over financial reporting.
(j) No Undisclosed
Liabilities. Neither the Company nor any of the Company Subsidiaries has
any liabilities or obligations of any nature (absolute, accrued, contingent or
otherwise) which are not properly reflected or reserved against in the Company
Financial Statements to the extent required to be so reflected or reserved
against in accordance with GAAP, except for (A) liabilities that have arisen
since the last fiscal year end in the ordinary and usual course of business and
consistent with past practice and (B) liabilities that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Company
Material Adverse Effect.
(k) Offering of
Securities. Neither the Company nor any person acting on its behalf has
taken any action (including any offering of any securities of the Company under
circumstances which would require the integration of such offering with the
offering of any of the Purchased Securities under the Securities Act, and the
rules and regulations of the SEC promulgated thereunder), which might subject
the offering, issuance or sale of any of the Purchased Securities to Investor
pursuant to this Agreement to the registration requirements of the Securities
Act.
(l) Litigation and Other
Proceedings. Except (i) as set forth on Schedule D or (ii) as
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, there is no (A) pending or, to the knowledge of
the Company, threatened, claim, action, suit, investigation or proceeding,
against the Company or any Company Subsidiary or to which any of their assets
are subject nor is the Company or any Company Subsidiary subject to any order,
judgment or decree or (B) unresolved violation, criticism or exception by any
Governmental Entity with respect to any report or relating to any examinations
or inspections of the Company or any Company Subsidiaries.
(m) Compliance with Laws.
Except as would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect, the Company and the
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Company
Subsidiaries have all permits, licenses, franchises, authorizations, orders and
approvals of, and have made all filings, applications and registrations with,
Governmental Entities that are required in order to permit them to own or lease
their properties and assets and to carry on their business as presently
conducted and that are material to the business of the Company or such Company
Subsidiary. Except as set forth on Schedule E, the
Company and the Company Subsidiaries have complied in all respects and are not
in default or violation of, and none of them is, to the knowledge of the
Company, under investigation with respect to or, to the knowledge of the
Company, have been threatened to be charged with or given notice of any
violation of, any applicable domestic (federal, state or local) or foreign law,
statute, ordinance, license, rule, regulation, policy or guideline, order,
demand, writ, injunction, decree or judgment of any Governmental Entity, other
than such noncompliance, defaults or violations that would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse
Effect. Except for statutory or regulatory restrictions of general application
or as set forth on Schedule E, no
Governmental Entity has placed any restriction on the business or properties of
the Company or any Company Subsidiary that would, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse
Effect.
(n) Employee Benefit
Matters. Except as would not reasonably be expected to have, either
individually or in the aggregate, a Company Material Adverse Effect: (A) each
“employee benefit plan” (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”)) providing benefits
to any current or former employee, officer or director of the Company or any
member of its “Controlled
Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”)) that is sponsored,
maintained or contributed to by the Company or any member of its Controlled
Group and for which the Company or any member of its Controlled Group would have
any liability, whether actual or contingent (each, a “Plan”) has been maintained in
compliance with its terms and with the requirements of all applicable statutes,
rules and regulations, including ERISA and the Code; (B) with respect to each
Plan subject to Title IV of ERISA (including, for purposes of this clause (B),
any plan subject to Title IV of ERISA that the Company or any member of its
Controlled Group previously maintained or contributed to in the six years prior
to the Signing Date), (1) no “reportable event” (within the meaning of Section
4043(c) of ERISA), other than a reportable event for which the notice period
referred to in Section 4043(c) of ERISA has been waived, has occurred in the
three years prior to the Signing Date or is reasonably expected to occur, (2) no
“accumulated funding deficiency” (within the meaning of Section 302 of ERISA or
Section 412 of the Code), whether or not waived, has occurred in the three years
prior to the Signing Date or is reasonably expected to occur, (3) the fair
market value of the assets under each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on the assumptions used to
fund such Plan) and (4) neither the Company nor any member of its Controlled
Group has incurred in the six years prior to the Signing Date, or reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the PBGC in the ordinary course and
without default) in respect of a Plan (including any Plan that is a
“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and
(C) each Plan that is intended to be qualified under Section 401(a) of the Code
has received a favorable
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determination
letter from the Internal Revenue Service with respect to its qualified status
that has not been revoked, or such a determination letter has been timely
applied for but not received by the Signing Date, and nothing has occurred,
whether by action or by failure to act, which could reasonably be expected to
cause the loss, revocation or denial of such qualified status or favorable
determination letter.
(o) Taxes. Except as
would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, (i) the Company and the Company Subsidiaries
have filed all federal, state, local and foreign income and franchise Tax
returns required to be filed through the Signing Date, subject to permitted
extensions, and have paid all Taxes due thereon, and (ii) no Tax deficiency has
been determined adversely to the Company or any of the Company Subsidiaries, nor
does the Company have any knowledge of any Tax deficiencies. “Tax” or “Taxes” means any federal,
state, local or foreign income, gross receipts, property, sales, use, license,
excise, franchise, employment, payroll, withholding, alternative or add on
minimum, ad valorem, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or penalty, imposed by any Governmental
Entity.
(p) Properties and
Leases. Except as would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect, the Company and the
Company Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from liens,
encumbrances, claims and defects that would affect the value thereof or
interfere with the use made or to be made thereof by them. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, the Company and the Company Subsidiaries hold all
leased real or personal property under valid and enforceable leases with no
exceptions that would interfere with the use made or to be made thereof by
them.
(q) Environmental
Liability. Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect:
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(i) there
is no legal, administrative, or other proceeding, claim or action of any
nature seeking to impose, or that would reasonably be expected to result
in the imposition
of, on the Company or any Company Subsidiary, any liability relating to
the release of hazardous substances as defined under any local, state or
federal environmental
statute, regulation or ordinance, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, pending
or, to the Company’s
knowledge, threatened against the Company or any Company
Subsidiary;
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(ii) to
the Company’s knowledge, there is no reasonable basis for any such
proceeding, claim or action; and
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(iii) neither
the Company nor any Company Subsidiary is subject to any agreement, order,
judgment or decree by or with any court, Governmental Entity or
third party
imposing any such environmental
liability.
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(r) Risk Management
Instruments. Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, all derivative
instruments, including, swaps, caps, floors and option agreements, whether
entered into for the Company’s own account, or for the account of one or more of
the Company Subsidiaries or its or their customers, were entered into (i) only
in the ordinary course of business, (ii) in accordance with prudent practices
and in all material respects with all applicable laws, rules, regulations and
regulatory policies and (iii) with counterparties believed to be financially
responsible at the time; and each of such instruments constitutes the valid and
legally binding obligation of the Company or one of the Company Subsidiaries,
enforceable in accordance with its terms, except as may be limited by the
Bankruptcy Exceptions. Neither the Company or the Company Subsidiaries, nor, to
the knowledge of the Company, any other party thereto, is in breach of any of
its obligations under any such agreement or arrangement other than such breaches
that would not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect.
(s) Agreements with Regulatory
Agencies. Except as set forth on Schedule F, neither
the Company nor any Company Subsidiary is subject to any material
cease-and-desist or other similar order or enforcement action issued by, or is a
party to any material written agreement, consent agreement or memorandum of
understanding with, or is a party to any commitment letter or similar
undertaking to, or is subject to any capital directive by, or since December 31,
2006, has adopted any board resolutions at the request of, any Governmental
Entity (other than the Appropriate Federal Banking Agencies with jurisdiction
over the Company and the Company Subsidiaries) that currently restricts in any
material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its liquidity and funding policies and
practices, its ability to pay dividends, its credit, risk management or
compliance policies or procedures, its internal controls, its management or its
operations or business (each item in this sentence, a “Regulatory Agreement”), nor
has the Company or any Company Subsidiary been advised since December 31, 2006
by any such Governmental Entity that it is considering issuing, initiating,
ordering, or requesting any such Regulatory Agreement. The Company and each
Company Subsidiary are in compliance in all material respects with each
Regulatory Agreement to which it is party or subject, and neither the Company
nor any Company Subsidiary has received any notice from any Governmental Entity
indicating that either the Company or any Company Subsidiary is not in
compliance in all material respects with any such Regulatory Agreement. "Appropriate Federal Banking
Agency" means the “appropriate Federal banking agency” with respect to
the Company or such Company Subsidiaries, as applicable, as defined in Section
3(q) of the Federal Deposit Insurance Act (12 U.S.C. Section
1813(q)).
(t) Insurance. The
Company and the Company Subsidiaries are insured with reputable insurers against
such risks and in such amounts as the management of the Company reasonably has
determined to be prudent and consistent with industry practice. The Company and
the Company Subsidiaries are in material compliance with their insurance
policies and are not in default under any of the material terms thereof, each
such policy is outstanding and in full force and effect, all premiums and other
payments due under any material policy have been paid, and all claims thereunder
have been filed in due and timely fashion, except, in each case, as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
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(u) Intellectual
Property. Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, (i) the
Company and each Company Subsidiary owns or otherwise has the right to use, all
intellectual property rights, including all trademarks, trade dress, trade
names, service marks, domain names, patents, inventions, trade secrets,
know-how, works of authorship and copyrights therein, that are used in the
conduct of their existing businesses and all rights relating to the plans,
design and specifications of any of its branch facilities (“Proprietary Rights”) free and
clear of all liens and any claims of ownership by current or former employees,
contractors, designers or others and (ii) neither the Company nor any of the
Company Subsidiaries is materially infringing, diluting, misappropriating or
violating, nor has the Company or any or the Company Subsidiaries received any
written (or, to the knowledge of the Company, oral) communications alleging that
any of them has materially infringed, diluted, misappropriated or violated, any
of the Proprietary Rights owned by any other person. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, to the Company’s knowledge, no other person is
infringing, diluting, misappropriating or violating, nor has the Company or any
or the Company Subsidiaries sent any written communications since January 1,
2006 alleging that any person has infringed, diluted, misappropriated or
violated, any of the Proprietary Rights owned by the Company and the Company
Subsidiaries.
(v) Brokers and Finders.
No broker, finder or investment banker is entitled to any financial advisory,
brokerage, finder's or other fee or commission in connection with this Agreement
or the Warrant or the transactions contemplated hereby or thereby based upon
arrangements made by or on behalf of the Company or any Company Subsidiary for
which the Investor could have any liability.
Article
III
Covenants
3.1 Commercially Reasonable
Efforts.
(a) Subject to the terms and conditions of
this Agreement, each of the parties will use its commercially reasonable efforts
in good faith to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Purchase as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall use commercially reasonable efforts to cooperate
with the other party to that end.
(b) If the
Company is required to obtain any stockholder approvals set forth on Schedule C, then the
Company shall comply with this Section 3.1(b) and Section 3.1(c). The Company
shall call a special meeting of its stockholders, as promptly as practicable
following the Closing, to vote on proposals (collectively, the “Stockholder Proposals”) to
(i) approve the exercise of the Warrant for Common Stock for purposes of the
rules of the national security exchange on which the Common Stock is listed
and/or (ii) amend the Company’s Charter to increase the number of authorized
shares of Common Stock to at least such number as shall be sufficient to permit
the full exercise of the Warrant for Common Stock and comply with
the
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other
provisions of this Section 3.1(b) and Section 3.1(c). The Board of Directors
shall recommend to the Company’s stockholders that such stockholders vote in
favor of the Stockholder Proposals. In connection with such meeting, the Company
shall prepare (and the Investor will reasonably cooperate with the Company to
prepare) and file with the SEC as promptly as practicable (but in no event more
than ten business days after the Closing) a preliminary proxy statement, shall
use its reasonable best efforts to respond to any comments of the SEC or its
staff thereon and to cause a definitive proxy statement related to such
stockholders’ meeting to be mailed to the Company’s stockholders not more than
five business days after clearance thereof by the SEC, and shall use its
reasonable best efforts to solicit proxies for such stockholder approval of the
Stockholder Proposals. The Company shall notify the Investor promptly of the
receipt of any comments from the SEC or its staff with respect to the proxy
statement and of any request by the SEC or its staff for amendments or
supplements to such proxy statement or for additional information and will
supply the Investor with copies of all correspondence between the Company or any
of its representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to such proxy statement. If at any time prior to such
stockholders’ meeting there shall occur any event that is required to be set
forth in an amendment or supplement to the proxy statement, the Company shall as
promptly as practicable prepare and mail to its stockholders such an amendment
or supplement. Each of the Investor and the
Company agrees promptly to correct any information provided by it or on its
behalf for use in the proxy statement if and to the extent that such information
shall have become false or misleading in any material respect, and the Company
shall as promptly as practicable prepare and mail to its stockholders an
amendment or supplement to correct such information to the extent required by
applicable laws and regulations. The Company shall consult with the Investor
prior to filing any proxy statement, or any amendment or supplement thereto, and
provide the Investor with a reasonable opportunity to comment thereon. In the
event that the approval of any of the Stockholder Proposals is not obtained at
such special stockholders meeting, the Company shall include a proposal to
approve (and the Board of Directors shall recommend approval of) each such
proposal at a meeting of its stockholders no less than once in each subsequent
six- month period beginning on January 1, 2009 until all such approvals are
obtained or made.
(c) None of the
information supplied by the Company or any of the Company Subsidiaries
for inclusion in any proxy statement in connection with any such stockholders
meeting of the Company will, at the date it is filed with the SEC, when first
mailed to the Company’s stockholders and at the time of any stockholders
meeting, and at the time of any amendment or supplement thereof, contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
3.2 Expenses. Unless
otherwise provided in this Agreement or the Warrant, each of the
parties hereto will bear and pay all costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated under this Agreement and
the Warrant, including fees and expenses of its own financial or other
consultants, investment bankers, accountants and counsel.
3.3 Sufficiency of Authorized
Common Stock; Exchange Listing.
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(a) During
the period from the Closing Date (or, if the approval of the Stockholder
Proposals is required, the date of such approval) until the date on which the
Warrant has been fully exercised, the Company shall at all times have reserved
for issuance, free of preemptive or similar rights, a sufficient number of
authorized and unissued Warrant Shares to effectuate such exercise. Nothing in
this Section 3.3 shall preclude the Company from satisfying its obligations in
respect of the exercise of the Warrant by delivery of shares of Common Stock
which are held in the treasury of the Company. As soon as reasonably practicable
following the Closing, the Company shall, at its expense, cause the Warrant
Shares to be listed on the same national securities exchange on which the Common
Stock is listed, subject to official notice of issuance, and shall maintain such
listing for so long as any Common Stock is listed on such exchange.
(b) If requested by the
Investor, the Company shall promptly use its reasonable best efforts to cause
the Preferred Shares to be approved for listing on a national securities
exchange as promptly as practicable following such request.
3.4 Certain Notifications Until
Closing. From the Signing Date until the Closing, theCompany
shall promptly notify the Investor of (i) any fact, event or circumstance
ofwhich it
is aware and which would reasonably be expected to cause any representation or
warranty of the Company contained in this Agreement to be untrue or inaccurate
in any material respect or to cause any covenant or agreement of the Company
contained in this Agreement not to be complied with or satisfied in any material
respect and (ii) except as Previously Disclosed, any fact, circumstance, event,
change, occurrence, condition or development of which the Company is aware and
which, individually or in the aggregate, has had or would reasonably be expected
to have a Company Material Adverse Effect; provided, however, that delivery of any
notice pursuant to this Section 3.4 shall not limit or affect any rights of or
remedies available to the Investor; provided, further, that a failure to
comply with this Section 3.4 shall not constitute a breach of this Agreement or
the failure of any condition set forth in Section 1.2 to be satisfied unless the
underlying Company Material Adverse Effect or material breach would
independently result in the failure of a condition set forth in Section 1.2 to
be satisfied.
3.5 Access, Information and
Confidentiality.
(a) From the Signing Date until the
date when the Investor holds an amount of Preferred
Shares having an aggregate liquidation value of less than 10% of the Purchase
Price, the Company will permit the Investor and its agents, consultants,
contractors and advisors (x) acting through the Appropriate Federal Banking
Agency, to examine the corporate books and make copies thereof and to discuss
the affairs, finances and accounts of the Company and the Company Subsidiaries
with the principal officers of the Company, all upon reasonable notice and at
such reasonable times and as often as the Investor may reasonably request and
(y) to review any information material to the Investor’s investment in the
Company provided by the Company to its Appropriate Federal Banking Agency. Any
investigation pursuant to this Section 3.5 shall be conducted during normal
business hours and in such manner as not to interfere unreasonably with the
conduct of the business of the Company, and nothing herein shall require the
Company or any Company Subsidiary to disclose any information to the Investor to
the extent (i) prohibited by applicable law or regulation, or (ii) that such
disclosure would reasonably be
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expected
to cause a violation of any agreement to which the Company or any Company
Subsidiary is a party or would cause a risk of a loss of privilege to the
Company or any Company Subsidiary (provided that the Company
shall use commercially reasonable efforts to make appropriate substitute
disclosure arrangements under circumstances where the restrictions in this
clause (ii) apply).
(b) The Investor will use
reasonable best efforts to hold, and will use reasonable best efforts
to cause its agents, consultants, contractors and advisors to hold, in
confidence all nonpublic records, books, contracts, instruments, computer
data and other data and information (collectively, “Information”) concerning the
Company furnished or made available to it by the Company or its representatives
pursuant to this Agreement (except to the extent that such information can be
shown to have been (i) previously known by such party on a non-confidential
basis, (ii) in the public domain through no fault of such party or (iii) later
lawfully acquired from other sources by the party to which it was furnished (and
without violation of any other confidentiality obligation)); provided that nothing herein
shall prevent the Investor from disclosing any Information to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process.
Article
IV
Additional
Agreements
4.1 Purchase for
Investment. The Investor acknowledges that the Purchased Securities
and the
Warrant Shares have not been registered under the Securities Act or under any
state securities laws. The Investor (a) is acquiring the Purchased Securities
pursuant to an exemption from registration under the Securities Act solely for
investment with no present intention to distribute them to any person in
violation of the Securities Act or any applicable U.S. state securities laws,
(b) will not sell or otherwise dispose of any of the Purchased Securities or the
Warrant Shares, except in compliance with the registration requirements or
exemption provisions of the Securities Act and any applicable U.S. state
securities laws, and (c) has such knowledge and experience in financial and
business matters and in investments of this type that it is capable of
evaluating the merits and risks of the Purchase and of making an informed
investment decision.
4.2 Legends.
(a) The Investor
agrees that all certificates or other instruments representing the Warrant
and the Warrant Shares will bear a legend substantially to the following
effect:
“THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS.”
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(b) The
Investor agrees that all certificates or other instruments representing the
Warrant will also bear a legend substantially to the following
effect:
“THIS
INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER
PROVISIONS OF A SECURITIES PURCHASEAGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A
COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS
INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT
WILL BE VOID.”
(c) In
addition, the Investor agrees that all certificates or other instruments
representing the Preferred Shares will bear a legend substantially to the
following effect:
“THE
SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
ANY TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT
OFFER, SELL OR
OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS INSTRUMENT EXCEPT (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE
SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS INSTRUMENT
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO
THE ISSUER OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION
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REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”
(d) In the event that any
Purchased Securities or Warrant Shares (i) become registered under the
Securities Act or (ii) are eligible to be transferred without restriction in
accordance with Rule 144 or another exemption from registration under the
Securities Act (other than Rule 144A), the Company shall issue new certificates
or other instruments representing such Purchased Securities or Warrant Shares,
which shall not contain the applicable legends in Sections 4.2(a) and (c) above;
provided that the
Investor surrenders to the Company the previously issued certificates or other
instruments. Upon Transfer of all or a portion of the Warrant in compliance with
Section 4.4, the Company shall issue new certificates or other instruments
representing the Warrant, which shall not contain the applicable legend in
Section 4.2(b) above; provided that the Investor
surrenders to the Company the previously issued certificates or other
instruments.
4.3 Certain Transactions.
The Company will not merge or consolidate with, or sell, transfer
or lease all or substantially all of its property or assets to, any other party
unless the successor, transferee or lessee party (or its ultimate parent
entity), as the case may be (if not the Company), expressly assumes the due and
punctual performance and observance of each and every covenant, agreement and
condition of this Agreement to be performed and observed by the
Company.
4.4 Transfer of Purchased
Securities and Warrant Shares; Restrictions on Exercise of the Warrant. Subject
to compliance with applicable securities laws, the Investor shall be permitted
to transfer, sell, assign or otherwise dispose of (“Transfer”) all or a portion
of the Purchased Securities or Warrant Shares at any time, and the Company shall
take all steps as may be reasonably requested by the Investor to facilitate the
Transfer of the Purchased Securities and the Warrant Shares; provided that the Investor
shall not Transfer a portion or portions of the Warrant with respect to, and/or
exercise the Warrant for, more than one-half of the Initial Warrant Shares (as
such number may be adjusted from time to time pursuant to Section 13 thereof) in
the aggregate until the earlier of (a) the date on which the Company (or any
successor by Business Combination) has received aggregate gross proceeds of not
less than the Purchase Price (and the purchase price paid by the Investor to any
such successor for securities of such successor purchased under the CPP) from
one or more Qualified Equity Offerings (including Qualified Equity Offerings of
such successor) and (b) December 31, 2009. “Qualified Equity Offering” means the sale and
issuance for cash by the Company to persons other than the Company or any of the
Company Subsidiaries after the Closing Date of shares of perpetual Preferred
Stock, Common Stock or any combination of such stock, that, in each case,
qualify as and may be included in Tier 1 capital of the Company at the time of
issuance under the applicable risk-based capital guidelines of the Company’s
Appropriate Federal Banking Agency (other than any such sales and issuances made
pursuant to agreements or arrangements entered into, or pursuant to financing
plans which were publicly announced, on or prior to October 13,
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2008).
“Business Combination”
means a merger, consolidation, statutory share exchange or similar transaction
that requires the approval of the Company’s stockholders.
4.5 Registration
Rights.
(a) Registration.
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(i) Subject
to the terms and conditions of this Agreement, the Company covenants and
agrees that as promptly as practicable after the Closing Date (and in
any event
no later than 30 days after the Closing Date), the Company shall prepare
and file with the SEC a Shelf Registration Statement covering all
Registrable Securities (or otherwise
designate an existing Shelf Registration Statement filed with the SEC to
cover the Registrable Securities), and, to the extent the Shelf
Registration Statement has not theretofore
been declared effective or is not automatically effective upon such
filing, the Company shall use reasonable best efforts to cause such Shelf
Registration Statement to
be declared or become effective and to keep such Shelf Registration
Statement continuously effective and in compliance with the Securities Act
and usable for resale of such
Registrable Securities for a period from the date of its initial
effectiveness until such time as there are no Registrable Securities
remaining (including by refiling such Shelf Registration
Statement (or a new Shelf Registration Statement) if the initial Shelf
Registration Statement expires). So long as the Company is a well-known
seasoned issuer (as defined
in Rule 405 under the Securities Act) at the time of filing of the Shelf
Registration Statement with the SEC, such Shelf Registration Statement
shall be designated by the Company
as an automatic Shelf Registration Statement. Notwithstanding the
foregoing, if on the Signing Date the Company is not eligible to file a
registration statement on Form
S-3, then the Company shall not be obligated to file a Shelf Registration
Statement unless and until requested to do so in writing by the
Investor.
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(ii) Any
registration pursuant to Section 4.5(a)(i) shall be effected by means of a
shelf registration on an appropriate form under Rule 415 under the
Securities Act (a
“Shelf Registration
Statement”). If the Investor or any other Holder intends to
distribute any Registrable Securities by means of an underwritten offering
it shall promptly so advise
the Company and the Company shall take all reasonable steps to facilitate
such distribution, including the actions required pursuant to Section
4.5(c); provided
that the Company
shall not be required to facilitate an underwritten offering of
Registrable Securities unless the expected gross proceeds from such
offering exceed (i) 2% of the initial aggregate
liquidation preference of the Preferred Shares if such initial aggregate
liquidation preference is less than $2 billion and (ii) $200 million if
the initial aggregate liquidation
preference of the Preferred Shares is equal to or greater than $2 billion.
The lead underwriters in any such distribution shall be selected by the
Holders of a majority of
the Registrable Securities to be distributed; provided that to the
extent appropriate and permitted under applicable law, such Holders shall
consider the qualifications of any broker-dealer
Affiliate of the Company in selecting the lead underwriters in any such
distribution.
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(iii) The
Company shall not be required to effect a registration (including a resale
of Registrable Securities from an effective Shelf Registration Statement)
or an underwritten offering pursuant to Section 4.5(a): (A) with respect
to securities that are not Registrable Securities; or (B) if the Company
has notified the Investor and all other Holders that in the good faith
judgment of the Board of Directors, it would be materially detrimental to
the Company or its securityholders for such registration or underwritten
offering to be effected at such time, in which event the Company shall
have the right to defer such registration for a period of not more than 45
days after receipt of the request of the Investor or any other Holder;
provided that
such right to delay a registration or underwritten offering shall be
exercised by the Company (1) only if the Company has generally exercised
(or is concurrently exercising) similar black-out rights against holders
of similar securities that have registration rights and (2) not more than
three times in any 12-month period and not more than 90 days in the
aggregate in any 12-month period.
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(iv) If
during any period when an effective Shelf Registration Statement is not
available, the Company proposes to register any of its equity securities,
other than a registration pursuant to Section 4.5(a)(i) or a Special
Registration, and the registration form to be filed may be used for the
registration or qualification for distribution of Registrable Securities,
the Company will give prompt written notice to the Investor and all other
Holders of its intention to effect such a registration (but in no event
less than ten days prior to the anticipated filing date) and will include
in such registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within ten
business days after the date of the Company’s notice (a “Piggyback
Registration”). Any such person that has made such a written
request may withdraw its Registrable Securities from such Piggyback
Registration by giving written notice to the Company and the managing
underwriter, if any, on or before the fifth business day prior to the
planned effective date of such Piggyback Registration. The Company may
terminate or withdraw any registration under this Section 4.5(a)(iv) prior
to the effectiveness of such registration, whether or not Investor or any
other Holders have elected to include Registrable Securities in such
registration.
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(v) If the registration
referred to in Section 4.5(a)(iv) is proposed to be underwritten, the
Company will so advise Investor and all other Holders as a part of the
written notice given pursuant to Section 4. 5(a)(iv). In such event, the
right of Investor and all other Holders to registration pursuant to
Section 4.5(a) will be conditioned upon such persons’ participation in
such underwriting and the inclusion of such person’s Registrable
Securities in the underwriting if such securities are of the same class of
securities as the securities to be offered in the underwritten offering,
and each such person will (together with the Company and the other persons
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company; provided that the
Investor (as opposed to other Holders) shall not be required to indemnify
any person in connection with any registration. If any participating
person disapproves of the terms of the underwriting, such person may elect
to withdraw therefrom by written
notice
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to
the Company, the managing underwriters and the Investor (if the Investor is
participating in the underwriting).
| (vi) If either (x) the Company grants “piggyback” registration rights to one ormore third parties to include their securities in an underwritten offering under the Shelf Registration Statement pursuant to Section 4 .5(a) (ii) or (y) a Piggyback Registration under Section 4.5(a)(iv) relates to an underwritten offering on behalf of the Company, and in either case the managing underwriters advise the Company that in their reasonable opinion the number of securities requested to be included in such offering exceeds the number which can be sold without adversely affecting the marketability of such offering (including an adverse effect on the per share offering price), the Company will include insuch offering only such number of securities that in the reasonable opinion of such managing underwriters can be sold without adversely affecting the marketability of the offering (including an adverse effect on the per share offering price), which securities will be so included in the following order of priority: (A) first, in the case of a Piggyback Registration under Section 4.5(a)(iv), the securities the Company proposes to sell, (B) then the Registrable Securities of the Investor and all other Holders who have requested inclusion of Registrable Securities pursuant to Section 4.5(a)(ii) or Section 4.5(a)(iv), as applicable, pro rata on the basis of the aggregate number of such securities or shares owned by each such person and (C) lastly, any other securities of the Company that have been requested to be so included, subject to the terms of this Agreement; provided, however, that if the Company has, prior to the Signing Date, entered into an agreement with respect to its securities that is inconsistent with the order of priority contemplated hereby then it shall apply the order of priority in such conflicting agreement to the extent that it would otherwise result in a breach under such agreement. |
(b) Expenses of
Registration. All Registration Expenses incurred in connection with any
registration, qualification or compliance hereunder shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder shall be borne by the holders of the securities so registered pro rata on the basis of the
aggregate offering or sale price of the securities so registered.
(c) Obligations of the
Company. The Company shall use its reasonable best efforts, for so long
as there are Registrable Securities outstanding, to take such actions as are
under its control to not become an ineligible issuer (as defined in Rule 405
under the Securities Act) and to remain a well-known seasoned issuer (as defined
in Rule 405 under the Securities Act) if it has such status on the Signing Date
or becomes eligible for such status in the future. In addition, whenever
required to effect the registration of any Registrable Securities or facilitate
the distribution of Registrable Securities pursuant to an effective Shelf
Registration Statement, the Company shall, as expeditiously as reasonably
practicable:
| (i) Prepare and file with the SEC a prospectus supplement with respect to a proposed offering of Registrable Securities pursuant to an effective registration statement, subject to Section 4.5(d), keep such registration statement effective and keep |
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such
prospectus supplement current until the securities described therein are no
longer Registrable Securities.
(ii) Prepare
and file with the SEC such amendments and supplements to the applicable
registration statement and the prospectus or prospectus supplement used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(iii) Furnish
to the Holders and any underwriters such number of copies of the applicable
registration statement and each such amendment and supplement thereto (including
in each case all exhibits) and of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned or to be distributed by
them.
(iv) Use its
reasonable best efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders or any managing
underwriter(s), to keep such registration or qualification in effect for so long
as such registration statement remains in effect, and to take any other action
which may be reasonably necessary to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such Holder; provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(v) Notify
each Holder of Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the applicable prospectus, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(vi) Give
written notice to the Holders:
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(A) when
any registration statement filed pursuant to Section 4.5(a) or any
amendment thereto has been filed with the SEC (except for any amendment
effected by the filing of a document with the SEC pursuant to the Exchange
Act) and when such registration statement or any post-effective amendment
thereto has become effective; |
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(C) of
the issuance by the SEC of any stop order suspending the effectiveness of
any registration statement or the initiation of any proceedings for that
purpose;
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(D) of
the receipt by the Company or its legal counsel of any notification with
respect to the suspension of the qualification of the Common Stock for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
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(E) of
the happening of any event that requires the Company to make changes in
any effective registration statement or the prospectus related to the
registration statement in order to make the statements therein not
misleading (which notice shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made);
and
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(F) if
at any time the representations and warranties of the Company contained in
any underwriting agreement contemplated by Section 4.5(c)(x) cease to be
true and correct.
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(vii) Use its
reasonable best efforts to prevent the issuance or obtain the withdrawal of any
order suspending the effectiveness of any registration statement referred to in
Section 4.5(c)(vi)(C) at the earliest practicable time.
(viii) Upon the
occurrence of any event contemplated by Section 4.5(c)(v) or 4.5(c)(vi)(E),
promptly prepare a post-effective amendment to such registration statement or a
supplement to the related prospectus or file any other required document so
that, as thereafter delivered to the Holders and any underwriters, the
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
notifies the Holders in accordance with Section 4.5(c)(vi)(E) to suspend the use
of the prospectus until the requisite changes to the prospectus have been made,
then the Holders and any underwriters shall suspend use of such prospectus and
use their reasonable best efforts to return to the Company all copies of such
prospectus (at the Company’s expense) other than permanent file copies then in
such Holders’ or underwriters’ possession. The total number of days that any
such suspension may be in effect in any 12-month period shall not exceed 90
days.
(ix) Use
reasonable best efforts to procure the cooperation of the Company’s transfer
agent in settling any offering or sale of Registrable Securities, including with
respect to the transfer of physical stock certificates into book-entry form in
accordance with any procedures reasonably requested by the Holders or any
managing underwriter(s).
(x) If an
underwritten offering is requested pursuant to Section 4.5(a)(ii), enter into an
underwriting agreement in customary form, scope and substance and take all
such
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other
actions reasonably requested by the Holders of a majority of the Registrable
Securities being sold in connection therewith or by the managing underwriter(s),
if any, to expedite or facilitate the underwritten disposition of such
Registrable Securities, and in connection therewith in any underwritten offering
(including making members of management and executives of the Company available
to participate in “road shows”, similar sales events and other marketing
activities), (A) make such representations and warranties
to the Holders that are selling stockholders and the managing underwriter(s), if
any, with respect to the business of the Company and its subsidiaries, and the
Shelf Registration Statement, prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in customary form,
substance and scope, and, if true, confirm the same if and when requested, (B)
use its reasonable best efforts to furnish the underwriters with opinions of
counsel to the Company, addressed to the managing underwriter(s), if any,
covering the matters customarily covered in such opinions requested in
underwritten offerings, (C) use its reasonable best efforts to obtain “cold
comfort” letters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants
of any business acquired by the Company for which financial statements and
financial data are included in the Shelf Registration Statement) who have
certified the financial statements included in such
Shelf Registration Statement, addressed to each of the managing underwriter(s),
if any, such letters to be in customary form and covering matters of the type
customarily covered in “cold comfort” letters, (D) if an underwriting agreement
is entered into, the same shall contain indemnification provisions and
procedures customary in underwritten offerings (provided that the Investor shall
not be obligated to provide any indemnity), and (E) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority of the
Registrable Securities being sold in connection therewith, their counsel and the
managing underwriter(s), if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
(xi) Make available for
inspection by a representative of Holders that are selling stockholders, the
managing underwriter(s), if any, and any attorneys or accountants retained by
such Holders or managing underwriter(s), at the offices where normally kept,
during reasonable business hours, financial and other records, pertinent
corporate documents and properties of the Company, and cause the officers,
directors and employees of the Company to supply all information in each case
reasonably requested (and of the type customarily provided in connection with
due diligence conducted in connection with a registered public offering of
securities) by any such representative, managing underwriter(s), attorney or
accountant in connection with such Shelf Registration Statement.
(xii) Use
reasonable best efforts to cause all such Registrable Securities to be listed on
each national securities exchange on which similar securities issued by the
Company are then listed or, if no similar securities issued by the Company are
then listed on any national securities exchange, use its reasonable best efforts
to cause all such
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Registrable Securities to be listed on such securities exchange as the Investor
may designate.
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(xiii) If
requested by Holders of a majority of the Registrable Securities being
registered and/or sold in connection therewith, or the managing
underwriter(s), if any, promptly include in a prospectus supplement or
amendment such information as the Holders of a majority of the Registrable
Securities being registered and/or sold in connection therewith or
managing underwriter(s), if any, may reasonably request in order to permit
the intended method of distribution of such securities and make all
required filings of such prospectus supplement or such amendment as soon
as practicable after the Company has received such
request.
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(xiv) Timely
provide to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
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(d) Suspension of Sales.
Upon receipt of written notice from the Company that a registration statement,
prospectus or prospectus supplement contains or may contain an untrue statement
of a material fact or omits or may omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that circumstances exist that make inadvisable use of such registration
statement, prospectus or prospectus supplement, the Investor and each Holder of
Registrable Securities shall forthwith discontinue disposition of Registrable
Securities until the Investor and/or Holder has received copies of a
supplemented or amended prospectus or prospectus supplement, or until the
Investor and/or such Holder is advised in writing by the Company that the use of
the prospectus and, if applicable, prospectus supplement may be resumed, and, if
so directed by the Company, the Investor and/or such Holder shall deliver to the
Company (at the Company’s expense) all copies, other than permanent file copies
then in the Investor and/or such Holder’s possession, of the prospectus and, if
applicable, prospectus supplement covering such Registrable Securities current
at the time of receipt of such notice. The total number of days that any such
suspension may be in effect in any 12-month period shall not exceed 90
days.
(e) Termination of Registration
Rights. A Holder’s registration rights as to any securities held by such
Holder (and its Affiliates, partners, members and former members) shall not be
available unless such securities are Registrable Securities.
(f) Furnishing
Information.
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(i) Neither
the Investor nor any Holder shall use any free writing prospectus (as
defined in Rule 405) in connection with the sale of Registrable Securities
without the prior written consent of the Company.
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(ii) It
shall be a condition precedent to the obligations of the Company to take
any action pursuant to Section 4.5(c) that Investor and/or the selling
Holders and the underwriters, if any, shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them
and the intended method
of
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disposition
of such securities as shall be required to effect the registered offering of
their Registrable Securities.
(g) Indemnification.
(i) The
Company agrees to indemnify each Holder and, if a Holder is a person other than
an individual, such Holder’s officers, directors, employees, agents,
representatives and Affiliates, and each Person, if any, that controls a Holder
within the meaning of the Securities Act (each, an “Indemnitee”), against any and
all losses, claims, damages, actions, liabilities, costs and expenses (including
reasonable fees, expenses and disbursements of attorneys and other professionals
incurred in connection with investigating, defending, settling, compromising or
paying any such losses, claims, damages, actions, liabilities, costs and
expenses), joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of material fact contained in any registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents incorporated
therein by reference or contained in any free writing prospectus (as such term
is defined in Rule 405) prepared by the Company or authorized by it in writing
for use by such Holder (or any amendment or supplement thereto); or any omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, that the Company
shall not be liable to such Indemnitee in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon (A) an untrue statement or omission
made in such registration statement, including any such preliminary prospectus
or final prospectus contained therein or any such amendments or supplements
thereto or contained in any free writing prospectus (as such term is defined in
Rule 405) prepared by the Company or authorized by it in writing for use by such
Holder (or any amendment or supplement thereto), in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to the
Company by such Indemnitee for use in connection with such registration
statement, including any such preliminary prospectus or final prospectus
contained therein or any such amendments or supplements thereto, or (B) offers
or sales effected by or on behalf of such Indemnitee “by means of” (as defined
in Rule 1 59A) a “free writing prospectus” (as defined in Rule 405) that was not
authorized in writing by the Company.
(ii) If the
indemnification provided for in Section 4.5(g)(i) is unavailable to an
Indemnitee with respect to any losses, claims, damages, actions, liabilities,
costs or expenses referred to therein or is insufficient to hold the Indemnitee
harmless as contemplated therein, then the Company, in lieu of indemnifying such
Indemnitee, shall contribute to the amount paid or payable by such Indemnitee as
a result of such losses, claims, damages, actions, liabilities, costs or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnitee, on the one hand, and the Company, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, actions, liabilities, costs or expenses as well as any other
relevant
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equitable
considerations. The relative fault of the Company, on the one hand, and of the
Indemnitee, on the other hand, shall be determined by reference to, among other
factors, whether the untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company or by the
Indemnitee and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; the Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 4.5(g)(ii) were
determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations
referred to in Section 4.5(g)(i). No Indemnitee guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled
to contribution from the Company if the Company was not guilty of such
fraudulent misrepresentation.
(h) Assignment of Registration
Rights. The rights of the Investor to registration of Registrable
Securities pursuant to Section 4.5(a) may be assigned by the Investor to a
transferee or assignee of Registrable Securities with a liquidation preference
or, in the case of Registrable Securities other than Preferred Shares, a market
value, no less than an amount equal to (i) 2% of the initial aggregate
liquidation preference of the Preferred Shares if such initial aggregate
liquidation preference is less than $2 billion and (ii) $200 million if the
initial aggregate liquidation preference of the Preferred Shares is equal to or
greater than $2 billion; provided, however, the transferor
shall, within ten days after such transfer, furnish to the Company written
notice of the name and address of such transferee or assignee and the number and
type of Registrable Securities that are being assigned. For purposes of this
Section 4.5(h), “market value” per share of Common Stock shall be the last
reported sale price of the Common Stock on the national securities exchange on
which the Common Stock is listed or admitted to trading on the last trading day
prior to the proposed transfer, and the “market value” for the Warrant (or any
portion thereof) shall be the market value per share of Common Stock into which
the Warrant (or such portion) is exercisable less the exercise price per
share.
(i) Clear Market. With
respect to any underwritten offering of Registrable Securities by the Investor
or other Holders pursuant to this Section 4.5, the Company agrees not to effect
(other than pursuant to such registration or pursuant to a Special Registration)
any public sale or distribution, or to file any Shelf Registration Statement
(other than such registration or a Special Registration) covering, in the case
of an underwritten offering of Common Stock or Warrants, any of its equity
securities or, in the case of an underwritten offering of Preferred Shares, any
Preferred Stock of the Company, or, in each case, any securities convertible
into or exchangeable or exercisable for such securities, during the period not
to exceed ten days prior and 60 days following the effective date of such
offering or such longer period up to 90 days as may be requested by the managing
underwriter for such underwritten offering. The Company also agrees to cause
such of its directors and senior executive officers to execute and deliver
customary lock-up agreements in such form and for such time period up to 90 days
as may be requested by the managing underwriter. “Special Registration” means
the registration of (A) equity securities and/or options or other rights in
respect thereof solely registered on Form S-4 or Form S-8 (or successor form) or
(B) shares of equity securities and/or options or other rights in respect
thereof to be offered to directors, members of management, employees,
consultants,
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customers,
lenders or vendors of the Company or Company Subsidiaries or in connection with
dividend reinvestment plans.
(j) Rule 144; Rule 144A.
With a view to making available to the Investor and Holders
the benefits of certain rules and regulations of the SEC which may permit the
saleof the
Registrable Securities to the public without registration, the Company agrees to
use its reasonable best efforts to:
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(i) make
and keep public information available, as those terms are understood and
defined in Rule 144(c)(1) or any similar or analogous rule promulgated
under the Securities Act, at all times after the Signing
Date;
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(ii) (A)
file with the SEC, in a timely manner, all reports and other documents
required of the Company under the Exchange Act, and (B) if at any time the
Company is not required to file such reports, make available, upon the
request of any Holder, such information necessary to permit sales pursuant
to Rule 144A (including the information required by Rule 144A(d)(4) under
the Securities Act);
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(iii) so long
as the Investor or a Holder owns any Registrable Securities, furnish to
the Investor or such Holder forthwith upon request: a written statement by
the Company as to its compliance with the reporting requirements of Rule
144 under the Securities Act, and of the Exchange Act; a copy of the most
recent annual or quarterly report of the Company; and such other reports
and documents as the Investor or Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing it to sell any such
securities to the public without registration;
and
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(iv) take
such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities
Act.
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(k) As used in this
Section 4.5, the following terms shall have the following respective
meanings:
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(i) “Holder” means the
Investor and any other holder of Registrable Securities to whom the
registration rights conferred by this Agreement have been transferred in
compliance with Section 4.5(h) hereof.
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(ii) “Holders’ Counsel” means
one counsel for the selling Holders chosen by Holders holding a majority
interest in the Registrable Securities being
registered.
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(iii) “Register,” “registered,” and “registration” shall
refer to a registration effected by preparing and (A) filing a
registration statement in compliance with the Securities Act and
applicable rules and regulations thereunder, and the declaration or
ordering of effectiveness of such registration statement or (B) filing a
prospectus and/or
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prospectus
supplement in respect of an appropriate effective registration statement on Form
S-3.
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(iv) “Registrable Securities”
means (A) all Preferred Shares, (B) the Warrant (subject to Section
4.5(p)) and (C) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in the foregoing
clauses (A) or (B) by way of conversion, exercise or exchange thereof,
including the Warrant Shares, or share dividend or share split or in
connection with a combination of shares, recapitalization,
reclassification, merger, amalgamation, arrangement, consolidation or
other reorganization,
provided that, once issued, such securities will not be Registrable
Securities when (1) they are sold pursuant to an effective registration
statement under the Securities Act, (2) except as provided below in
Section 4.5(o), they may be sold pursuant to Rule 144 without limitation
thereunder on volume or manner of sale, (3) they shall have ceased to be
outstanding or (4) they have been sold in a private transaction in which
the transferor's rights under this Agreement are not assigned to the
transferee of the securities. No Registrable Securities may be registered
under more than one registration statement at any one
time.
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(v) “Registration Expenses”
mean all expenses incurred by the Company in effecting any registration
pursuant to this Agreement (whether or not any registration or prospectus
becomes effective or final) or otherwise complying with its obligations
under this Section 4.5, including all registration, filing and listing
fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, expenses incurred in connection with
any “road show”, the reasonable fees and disbursements of Holders’ Counsel,
and expenses of the Company’s independent accountants in connection with
any regular or special reviews or audits incident to or required by any
such registration, but shall not include Selling
Expenses.
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(vi) “Rule 144”, “Rule 144A”, “Rule 159A”, “Rule 405” and “Rule 415” mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to
time.
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(vii) “Selling Expenses” mean
all discounts, selling commissions and stock transfer taxes applicable to
the sale of Registrable Securities and fees and disbursements of counsel
for any Holder (other than the fees and disbursements of Holders’ Counsel
included in Registration
Expenses).
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(l) At any time, any
holder of Securities (including any Holder) may elect to forfeit its
rights set forth in this Section 4.5 from that date forward; provided, that a Holder
forfeiting such rights shall nonetheless be entitled to participate under
Section 4.5(a)(iv) – (vi) in any Pending Underwritten Offering to the same
extent that such Holder would have been entitled to if the holder had not
withdrawn; and provided, further, that no such
forfeiture shall terminate a Holder’s rights or obligations under Section 4.5(f)
with respect to any prior registration or Pending Underwritten Offering. “Pending Underwritten
Offering” means,
with respect to any Holder forfeiting its rights pursuant to this Section
4.5(l), any underwritten offering of
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Registrable
Securities in which such Holder has advised the Company of its intent to
register its Registrable Securities either pursuant to Section 4.5(a)(ii) or
4.5(a)(iv) prior to the date of such Holder’s forfeiture.
(m) Specific Performance.
The parties hereto acknowledge that there would be no adequate remedy at law if
the Company fails to perform any of its obligations under this Section 4.5 and
that the Investor and the Holders from time to time may be irreparably harmed by
any such failure, and accordingly agree that the Investor and such Holders, in
addition to any other remedy to which they may be entitled at law or in equity,
to the fullest extent permitted and enforceable under applicable law shall be
entitled to compel specific performance of the obligations of the Company under
this Section 4.5 in accordance with the terms and conditions of this Section
4.5.
(n) No Inconsistent
Agreements. The Company shall not, on or after the Signing Date, enter
into any agreement with respect to its securities that may impair the rights
granted to the Investor and the Holders under this Section 4.5 or that otherwise
conflicts with the provisions hereof in any manner that may impair the rights
granted to the Investor and the Holders under this Section 4.5. In the event the
Company has, prior to the Signing Date, entered into any agreement with respect
to its securities that is inconsistent with the rights granted to the Investor
and the Holders under this Section 4.5 (including agreements that are
inconsistent with the order of priority contemplated by Section 4.5(a)(vi)) or
that may otherwise conflict with the provisions hereof, the Company shall use
its reasonable best efforts to amend such agreements to ensure they are
consistent with the provisions of this Section 4.5.
(o) Certain Offerings by the
Investor. In the case of any securities held by the Investor that cease
to be Registrable Securities solely by reason of clause (2) in the definition of
“Registrable Securities,” the provisions of Sections 4.5(a)(ii), clauses (iv),
(ix) and (x)-(xii) of Section 4.5(c), Section 4.5(g) and Section 4.5(i) shall
continue to apply until such securities otherwise cease to be Registrable
Securities. In any such case, an “underwritten” offering or other disposition
shall include any distribution of such securities on behalf of the Investor by
one or more broker-dealers, an “underwriting agreement” shall include any
purchase agreement entered into by such broker-dealers, and any “registration
statement” or “prospectus” shall include any offering document approved by the
Company and used in connection with such distribution.
(p) Registered Sales of the
Warrant. The Holders agree to sell the Warrant or any portion thereof
under the Shelf Registration Statement only beginning 30 days after notifying
the Company of any such sale, during which 30-day period the Investor and all
Holders of the Warrant shall take reasonable steps to agree to revisions to the
Warrant to permit a public distribution of the Warrant, including entering into
a warrant agreement and appointing a warrant agent.
4.6 Voting of Warrant
Shares. Notwithstanding anything in this Agreement to the contrary,
the Investor shall not exercise any voting rights with respect to the Warrant
Shares.
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4.7 Depositary Shares.
Upon request by the Investor at any time following the Closing
Date, the Company shall promptly enter into a depositary arrangement, pursuant
to customary agreements reasonably satisfactory to the Investor and with a
depositary reasonably acceptable to the Investor, pursuant to which the
Preferred Shares may be deposited and depositary shares, each representing a
fraction of a Preferred Share as specified by the Investor, may be issued. From
and after the execution of any such depositary arrangement, and the deposit of
any Preferred Shares pursuant thereto, the depositary shares issued pursuant
thereto shall be deemed “Preferred Shares” and, as applicable, “Registrable
Securities” for purposes of this Agreement.
4.8 Restriction on Dividends and
Repurchases.
(a) Prior to the earlier
of (x) the third anniversary of the Closing Date and (y) the date on which
the Preferred Shares have been redeemed in whole or the Investor has transferred
all of the Preferred Shares to third parties which are not Affiliates of the
Investor, neither the Company nor any Company Subsidiary shall, without the
consent of the Investor:
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(i) declare
or pay any dividend or make any distribution on the Common Stock (other
than (A) regular quarterly cash dividends of not more than the amount of
the last quarterly cash dividend per share declared or, if lower, publicly
announced an intention to declare, on the Common Stock prior to October
14, 2008, as adjusted for any stock split, stock dividend, reverse stock
split, reclassification or similar transaction, (B) dividends payable
solely in shares of Common Stock and (C) dividends or distributions of
rights or Junior Stock in connection with a stockholders’ rights plan);
or
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(ii) redeem,
purchase or acquire any shares of Common Stock or other capital stock or
other equity securities of any kind of the Company, or any trust preferred
securities issued by the Company or any Affiliate of the Company, other
than (A) redemptions, purchases or other acquisitions of the Preferred
Shares, (B) redemptions, purchases or other acquisitions of shares of
Common Stock or other Junior Stock, in each case in this clause (B) in
connection with the administration of any employee benefit plan in the
ordinary course of business (including purchases to offset the Share
Dilution Amount (as defined below) pursuant to a publicly announced
repurchase plan) and consistent with past practice; provided that any
purchases to offset the Share Dilution Amount shall in no event exceed the
Share Dilution Amount, (C) purchases or other acquisitions by a
broker-dealer subsidiary of the Company solely for the purpose of
market-making, stabilization or customer facilitation transactions in
Junior Stock or Parity Stock in the ordinary course of its business, (D)
purchases by a broker-dealer subsidiary of the Company of capital stock of
the Company for resale pursuant to an offering by the Company of such
capital stock underwritten by such broker-dealer subsidiary, (E) any
redemption or repurchase of rights pursuant to any stockholders’ rights
plan, (F) the acquisition by the Company or any of the Company
Subsidiaries of record ownership in Junior Stock or Parity Stock for the
beneficial ownership of any other persons (other than the Company or any
other Company Subsidiary), including as trustees or custodians, and (G)
the exchange or conversion of Junior Stock for or
into
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other
Junior Stock or of Parity Stock or trust preferred securities for or into other
Parity Stock (with the same or lesser aggregate liquidation amount) or Junior
Stock, in each case set forth in this clause (G), solely to the extent required
pursuant to binding contractual agreements entered into prior to the Signing
Date or any subsequent agreement
for the accelerated exercise, settlement or exchange thereof for Common Stock
(clauses (C) and (F), collectively, the “Permitted Repurchases”).
“Share Dilution Amount” means the increase in
the number of diluted shares outstanding (determined in accordance with GAAP,
and as measured from the date of the Company’s most recently filed Company
Financial Statements prior to the Closing Date) resulting from the grant,
vesting or exercise of equity-based compensation to employees and equitably
adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction.
(b) Until
such time as the Investor ceases to own any Preferred Shares, the Company shall
not repurchase any Preferred Shares from any holder thereof, whether by means of
open market purchase, negotiated transaction, or otherwise, other than Permitted
Repurchases, unless it offers to repurchase a ratable portion of the Preferred
Shares then held by the Investor on the same terms and conditions.
(c) “Junior Stock” means Common
Stock and any other class or series of stock of the Company the terms of which
expressly provide that it ranks junior to the Preferred Shares as to dividend
rights and/or as to rights on liquidation, dissolution or winding up of the
Company. “Parity Stock”
means any class or series of stock of the Company the terms of which do
not expressly provide that such class or series will rank senior or junior to
the Preferred Shares as to dividend rights and/or as to rights on liquidation,
dissolution or winding up of the Company (in each case without regard to whether
dividends accrue cumulatively or non-cumulatively).
4.9 Repurchase of Investor
Securities.
(a) Following the redemption in whole of
the Preferred Shares held by the Investor or the Transfer by the Investor of all
of the Preferred Shares to one or more third parties not affiliated with the
Investor, the Company may repurchase, in whole or in part, at any time any other
equity securities of the Company purchased by the Investor pursuant to this
Agreement or the Warrant and then held by the Investor, upon notice given as
provided in clause (b) below, at the Fair Market Value of the equity
security.
(b) Notice of every repurchase of
equity securities of the Company held by the Investor shall be given at the
address and in the manner set forth for such party in Section 5.6. Each notice
of repurchase given to the Investor shall state: (i) the number and type of
securities to be repurchased, (ii) the Board of Director’s determination of Fair
Market Value of such securities and (iii) the place or places where certificates
representing such securities are to be surrendered for payment of the repurchase
price. The repurchase of the securities specified in the notice shall occur as
soon as practicable following the determination of the Fair Market Value of the
securities.
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(c) As used in this
Section 4.9, the following terms shall have the following respective
meanings:
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(i) “Appraisal Procedure”
means a procedure whereby two independent appraisers, one chosen by the
Company and one by the Investor, shall mutually agree upon the Fair Market
Value. Each party shall deliver a notice to the other appointing its
appraiser within 10 days after the Appraisal Procedure is invoked. If
within 30 days after appointment of the two appraisers they are unable to
agree upon the Fair Market Value, a third independent appraiser shall be
chosen within 10 days thereafter by the mutual consent of such first two
appraisers. The decision of the third appraiser so appointed and chosen
shall be given within 30 days after the selection of such third appraiser.
If three appraisers shall be appointed and the determination of one
appraiser is disparate from the middle determination by more than twice
the amount by which the other determination is disparate from the middle
determination, then the determination of such appraiser shall be excluded,
the remaining two determinations shall be averaged and such average shall
be binding and conclusive upon the Company and the Investor; otherwise,
the average of all three determinations shall be binding upon the Company
and the Investor. The costs of conducting any Appraisal Procedure shall be
borne by the Company.
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(ii) “Fair Market Value”
means, with respect to any security, the fair market value of such
security as determined by the Board of Directors, acting in good faith in
reliance on an opinion of a nationally recognized independent investment
banking firm retained by the Company for this purpose and certified in a
resolution to the Investor. If the Investor does not agree with the Board
of Director’s determination, it may object in writing within 10 days of
receipt of the Board of Director’s determination. In the event of such an
objection, an authorized representative of the Investor and the chief
executive officer of the Company shall promptly meet to resolve the
objection and to agree upon the Fair Market Value. If the chief executive
officer and the authorized representative are unable to agree on the Fair
Market Value during the 10-day period following the delivery of the
Investor’s objection, the Appraisal Procedure may be invoked by either
party to determine the Fair Market Value by delivery of a written
notification thereof not later than the 30th
day after delivery of the Investor’s
objection.
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4.10 Executive
Compensation. Until such time as the Investor ceases to own any debt or
equity securities of the Company acquired pursuant to this Agreement or the
Warrant, the Company shall take all necessary action to ensure that its Benefit
Plans with respect to its Senior Executive Officers comply in all respects with
Section 111(b) of the EESA as implemented by any guidance or regulation
thereunder that has been issued and is in effect as of the Closing Date, and
shall not adopt any new Benefit Plan with respect to its Senior Executive
Officers that does not comply therewith. “Senior Executive Officers”
means the Company's "senior executive officers" as defined in subsection 111
(b)(3) of the EESA and regulations issued thereunder, including the rules set
forth in 31 C.F.R. Part 30.
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Article
V
Miscellaneous
5.1 Termination. This
Agreement may be terminated at any time prior to the Closing:
(a) by either
the Investor or the Company if the Closing shall not have occurred by
the
30th
calendar day following the Signing Date; provided, however, that in the event
the Closing has not occurred by such 30th
calendar day, the parties will consult in good faith to determine whether to
extend the term of this Agreement, it being understood that the parties shall be
required to consult only until the fifth day after such 30th
calendar day and not be under any obligation to extend the term of this
Agreement thereafter; provided, further, that the right to
terminate this Agreement under this Section 5.1(a) shall not be available to any
party whose breach of any representation or warranty or failure to perform any
obligation under this Agreement shall have caused or resulted in the failure of
the Closing to occur on or prior to such date; or
(b) by either the Investor or the
Company in the event that any Governmental Entity shall
have issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and nonappealable; or
(c) by the
mutual written consent of the Investor and the Company.
In the
event of termination of this Agreement as provided in this Section 5.1, this
Agreement shall forthwith become void and there shall be no liability on the
part of either party hereto except that nothing herein shall relieve either
party from liability for any breach of this Agreement.
5.2 Survival of Representations
and Warranties. All covenants and agreements, other than
those which by their terms apply in whole or in part after the Closing, shall
terminate as of the Closing. The representations and warranties of the Company
made herein or in any certificates delivered in connection with the Closing
shall survive the Closing without limitation.
5.3 Amendment. No
amendment of any provision of this Agreement will be effective unless
made in writing and signed by an officer or a duly authorized representative of
each party; provided
that the Investor may unilaterally amend any provision of this Agreement to the
extent required to comply with any changes after the Signing Date in applicable
federal statutes. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative of any rights or remedies provided by law.
5.4 Waiver of Conditions.
The conditions to each party’s obligation to consummate the
Purchase are for the sole benefit of such party and may be waived by such party
in whole or in part to the extent permitted by applicable law. No waiver will be
effective unless it is in a
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writing
signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver.
5.5 Governing
Law: Submission to Jurisdiction, Etc. This Agreement will 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 otherwise in accordance with the laws
of the State of New York applicable to contracts made and to be performed
entirely within such State. Each of the parties hereto agrees (a) to submit to
the exclusive jurisdiction and venue of the United States District Court for the
District of Columbia and the United States Court of Federal Claims for any and
all civil actions, suits or proceedings arising out of or relating to this
Agreement or the Warrant or the transactions contemplated hereby or thereby, and
(b) that notice may be served upon (i) the Company at the address and in the
manner set forth for notices to the Company in Section 5.6 and (ii) the Investor
in accordance with federal law. To the extent permitted by applicable law, each
of the parties hereto hereby unconditionally waives trial by jury in any civil
legal action or proceeding relating to this Agreement or the Warrant or the
transactions contemplated hereby or thereby.
5.6 Notices. Any notice,
request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally, or by facsimile, upon
confirmation of receipt, or (b) on the second business day following the date of
dispatch if delivered by a recognized next day courier service. All notices to
the Company shall be delivered as set forth in Schedule A, or
pursuant to such other instruction as may be designated in writing by the
Company to the Investor. All notices to the Investor shall be delivered as set
forth below, or pursuant to such other instructions as may be designated in
writing by the Investor to the Company.
| If to the Investor: | |
| United States Department of the Treasury | |
| 1500 Pennsylvania Avenue, NW, Room 2312 | |
| Washington, D.C. 20220 | |
| Attention: Assistant General Counsel (Banking and Finance) Facsimile: (202) 622-1974 | |
5.7 Definitions
(a) When a reference is
made in this Agreement to a subsidiary of a person, the term “subsidiary” means any
corporation, partnership, joint venture, limited liability company or other
entity (x) of which such person or a subsidiary of such person is a general
partner or (y) of which a majority of the voting securities or other voting
interests, or a majority of the securities or other interests of which having by
their terms ordinary voting power to elect a majority of the board of directors
or persons performing similar functions with respect to such entity, is directly
or indirectly
owned by such person and/or one or more subsidiaries thereof.
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(b) The term
“Affiliate” means, with
respect to any person, any person directly or indirectly controlling, controlled
by or under common control with, such other person. For purposes of this
definition, “control”
(including, with correlative meanings, the terms “controlled by” and “under common control with”)
when used with respect to any person, means the possession, directly or
indirectly, of the power to cause the direction of management and/or policies of
such person, whether through the ownership of voting securities by contract or
otherwise.
(c) The terms “knowledge of the Company” or
“Company’s knowledge”
mean the actual knowledge after reasonable and due inquiry of the “officers” (as such term is
defined in Rule 3b-2 under the Exchange Act, but excluding any Vice President or
Secretary) of the Company.
5.8 Assignment. Neither
this Agreement nor any right, remedy, obligation nor
liability
arising hereunder or by reason hereof shall be assignable by any party hereto
without the prior written consent of the other party, and any attempt to assign
any right, remedy, obligation or liability hereunder without such consent shall
be void, except (a) an assignment, in the case of a Business Combination where
such party is not the surviving entity, or a sale of substantially all of its
assets, to the entity which is the survivor of such Business Combination or the
purchaser in such sale and (b) as provided in Section 4.5.
5.9 Severability. If any
provision of this Agreement or the Warrant, or the application thereof
to any person or circumstance, is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances other
than those as to which it has been held invalid or unenforceable, will remain in
full force and effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination, the parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
5.10 No Third Party
Beneficiaries. Nothing contained in this Agreement, expressed or implied,
is intended to confer upon any person or entity other than the Company and the
Investor any benefit, right or remedies, except that the provisions of Section
4.5 shall inure to the benefit of the persons referred to in that
Section.
* *
*
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Exhibit 10.2
FORM OF
WAIVER
In
consideration for the benefits I will receive as a result of my employer’s
participation in the United States Department of the Treasury’s TARP Capital
Purchase Program, I hereby voluntarily waive any claim against the United States
or my employer for any changes to my compensation or benefits that are required
to comply with the regulation issued by the Department of the Treasury as
published in the Federal Register on October 20, 2008.
I
acknowledge that this regulation may require modification of the compensation,
bonus, incentive and other benefit plans, arrangements, policies and agreements
(including so-called “golden parachute” agreements) that I have with my employer
or in which I participate as they relate to the period the United States holds
any equity or debt securities of my employer acquired through the TARP Capital
Purchase Program.
This
waiver includes all claims I may have under the laws of the United States or any
state related to the requirements imposed by the aforementioned regulation,
including without limitation a claim for any compensation or other payments I
would otherwise receive, any challenge to the process by which this regulation
was adopted and any tort or constitutional claim about the effect of these
regulations on my employment relationship.
| Date: ____________________ | ____________________________________ |
| ____________________________________ | |
| ____________________________________ | |
| ____________________________________ |
Exhibit 10.3
FORM
OF
COMPENSATION
MODIFICATION AGREEMENT
THIS
AGREEMENT (“Agreement”), made this ____th day of ____________, 2008, by and
between Banner Corporation, Banner Bank, its wholly owned subsidiary, (together,
the “Corporation”) and ________________, a senior executive officer of the
Corporation (“Executive”).
WHEREAS,
the Corporation has determined that it is in the best interests of the
Corporation and its stockholders to participate in the Treasury TARP CPP program
(“CPP”), under which the Corporation will issue preferred stock and warrants to
purchase Corporation common stock to the United States Treasury (“UST”) in
return for cash; and
WHEREAS,
in order for the Corporation to participate in the CPP, the Corporation and its
senior executive officers subject to the Compensation Guidelines (“SEOs”) must
comply with Section 111(b) of the Emergency Economic Stabilization Act of 2008
regarding executive compensation and corporate governance and the related UST
interim final regulations (31 CFR Part 30) published in the Federal Register on
October 20, 2008 (the “Compensation Guidelines”); and
WHEREAS,
the Corporation is required to deliver a certificate to the UST at the closing
of the CPP transaction that it has complied with all the Compensation
Guidelines; and
WHEREAS,
the board of directors of the Corporation has authorized and directed the
Compensation Committee to take any and all the actions required under the
Compensation Guidelines in order to enable the Corporation to deliver that
certificate and authorized each member of the Compensation Committee to execute
this Agreement on behalf of the Corporation; and
WHEREAS,
in order to comply with the Compensation Guidelines for so long as UST holds
securities of the Corporation acquired in the CPP, the Corporation, through the
Compensation Committee, is required to review the Corporation’s compensation
plans and policies with senior risk officers in order to identify and
unilaterally eliminate any bonus plans or other incentive compensation
arrangements for SEOs that encourage them to take unnecessary and excessive
risks that threaten the value of the financial institution; and
WHEREAS,
in order to comply with the Compensation Guidelines for so long as UST holds
securities of the Corporation acquired in the CPP, the Corporation, through the
Compensation Committee, must adopt appropriate provisions for the recovery by
the Corporation of any bonus or incentive compensation paid to a senior
executive officer (as defined under the Compensation Guidelines) based on
financial statements or performance metric criteria later determined to be
materially inaccurate; and
WHEREAS,
in order to comply with the Compensation Guidelines as long for so UST holds
securities of the Corporation acquired in the CPP, the Corporation is prohibited
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from
making any golden parachute payment (as defined under the Compensation
Guidelines) to any SEO; and
WHEREAS,
the Corporation is required to deliver to the UST in connection with the
consummation of the CPP transaction a waiver from each of its SEOs with respect
to the changes in the Corporation’s compensation plans, polices and practices as
required by the Compensation Guidelines; and
WHEREAS,
the Compensation Committee has asked Executive to execute the waiver in the form
attached; and
WHEREAS,
the Executive believes the requirements imposed under the Compensation
Guidelines in order for the Corporation to obtain government funds by
participating in the CPP are reasonable and in the best interests of the
Corporation and its stockholders and furthers the long term best interests of
the Corporation and its SEOs, including the Executive.
NOW,
THEREFORE, to allow the Corporation to participate in the CPP for the mutual
benefit of the Corporation, its stockholders and Executive, and for other good
and valuable consideration, the Corporation and the Executive hereby agree as
follows:
1. GENERAL MODIFICATION OF
EMPLOYMENT, COMPENSATION AND BENEFIT AGREEMENTS, PLANS AND
POLICIES: Until such time as the UST ceases to own any debt or
equity securities of the Corporation acquired pursuant to the CPP, the
Corporation and Executive agree that, notwithstanding any contract, plan, policy
agreement or understanding to the contrary, all employment, compensation and
benefit agreements, plans and policies (collectively referred to herein as
“Executive Compensation Agreements”) with respect to Executive shall be deemed
modified to comply in all respects with Section 111(b) of EESA as implemented by
any guidance or regulation thereunder that has been issued and is in effect as
of the date the Corporation issues preferred stock and warrants to the UST, and
such Executive Compensation Agreements shall be administered and interpreted
accordingly. The Corporation and Executive further agree that the
Corporation shall not adopt any new benefit plan with respect to Executive that
does not comply with Section 111(b) of EESA as implemented by any guidance or
regulation thereunder that has been issued and is in effect as of the date the
Corporation issues preferred stock and warrants to the UST. The
Executive agrees that the Corporation, through its Compensation Committee, has
the sole discretion: (a) to determine whether and to what extent any bonus or
incentive compensation with respect to the Executive encourages the Executive to
take unnecessary and excessive risks that threaten the value of the financial
institution, and (b) to eliminate any such compensation as long as UST holds
securities of the Corporation acquired in the CPP.
2. RECOVERY OF INCENTIVE
COMPENSATION: Until such time as the UST ceases to own any
debt or equity securities of the Corporation acquired pursuant to the CPP, in
the event Executive receives a bonus or any other incentive compensation
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from
the Corporation based on financial statements or performance metric
criteria later determined by the Corporation’s Compensation Committee, in
its sole discretion, to be materially inaccurate, Executive agrees to
repay the Corporation, in cash and within 30 days of a written demand
therefore, the amount of the bonus or incentive compensation received by
Executive in excess of the amount that would have been paid to Executive
had the inaccurate statements or criteria been materially
accurate.
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3. GOLDEN PARACHUTE
PAYMENTS: Until such time as the UST ceases to own any debt or
equity securities of the Corporation acquired pursuant to the CPP, Executive
agrees that: (a) the Executive shall not be entitled to receive any golden
parachute payment (as defined under the Compensation Guidelines) upon
Executive’s applicable severance from employment (as defined under the
Compensation Guidelines) and (b) that all Executive Compensation Agreements
between Executive and the Corporation are deemed to be amended in this
regard.
4. WAIVER: Executive
hereby voluntarily waives any claim against the Corporation and the UST for any
changes to my compensation, bonus, incentive and other benefit plans,
arrangements, policies and agreements (including golden parachute agreements)
that are required to comply with the Compensation Guidelines and that are made
pursuant to this Agreement. This waiver includes all claims Executive
may have under the laws of the United States or any state related to the
requirements imposed by the Compensation Guidelines, including, without
limitation, a claim for any compensation or other payments Executive would
otherwise receive. Executive agrees to execute the required waiver in
the form attached hereto and deliver said warrant to the Corporation no later
than the close of business on November 18, 2008.
5. COVERED EMPLOYMENT,
COMPENSATION AND BENEFIT AGREEMENTS, PLANS AND
POLICIES: Executive acknowledges that the Executive
Compensation Agreements that are listed in Annex A hereto are all subject to the
modifications and amendments provided for in this Agreement, to the extent
applicable.
6. MODIFICATION - WAIVERS -
APPLICABLE LAW: No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing, signed by the Executive and on behalf of the Corporation by such
officer as may be specifically designated by the Board of Directors of the
Corporation. No waiver by either party hereto at any time of any breach by the
other party hereto of, or in compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by federal law, to the extent applicable, and otherwise by the laws of the State
of Washington.
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7. INVALIDITY -
ENFORCEABILITY: The invalidity or unenforceability of any provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. Any
provision in this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating or affecting the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8. HEADINGS: Descriptive
headings contained in this Agreement are for convenience only and shall not
control or affect the meaning or construction of any provision in this
Agreement.
(Remainder
of page intentionally left blank)
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first above written.
| EXECUTIVE | |
| _____________________________ | |
| Signature | |
| _____________________________ | |
| Print Name | |
| BANNER CORPORATION | |
|
By:
|
_____________________________ |
| Signature | |
| _____________________________ | |
| Print Name | |
|
Member of
the Compensation
Committee
|
|
| BANNER BANK | |
|
By:
|
_____________________________ |
| Signature | |
| _____________________________ | |
| Print Name | |
|
Member of
the Compensation
Committee
|
5
ANNEX
A
Employment
Agreements:
Severance Agreements:
Other
Benefit Plans or Agreements:
Other Employment Compensation and Benefit Plans and Policies:
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ANNEX
B
SEO WAIVER
[See Exhibit 10.2 of this Form 8-K]
Exhibit
99.1
 |
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Contact: D.
Michael Jones,
President and CEO
Lloyd W. Baker, CFO
(509) 527-3636
News
Release
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Banner Corporation Receives
$124 Million Investment from the U.S. Treasury’s
Capital Purchase
Program
Walla
Walla, WA – November 21, 2008 – Banner Corporation (NASDAQ GSM: BANR), the
parent company of Banner Bank and Islanders Bank, today announced that it has
received $124 million from the U.S. Treasury Department as a part of the
Treasury’s Capital Purchase Program. This funding marks Banner’s
successful completion of the sale of $124 million in senior preferred stock,
with a related warrant to purchase up to $18.6 million in common stock to the
U.S. Treasury. The transaction is part of the Treasury’s program to
encourage qualified financial institutions to build capital to increase the flow
of financing to businesses and consumers and to support the U.S.
economy.
“We
appreciate and support the efforts of the U.S. Treasury Department to stabilize
financial markets and increase the flow of credit to deserving borrowers,” said
D. Michael Jones, President and CEO. “We are pleased that we have
been selected to participate in this voluntary program, which will allow us to
be a party to those actions and is an important recognition of the strength and
financial health of Banner. The additional capital will enhance our
capacity to support the communities we serve through expanded lending activities
and economic development. This capital will also add flexibility in
considering strategic opportunities that likely will be available to us as the
financial services industry continues to consolidate. We believe that
participation in this program should be beneficial for the employees, customers
and shareholders of Banner Corporation.”
At
September 30, 2008, Banner Corporation, Banner Bank and Islanders Bank were each
“well-capitalized” under all regulatory guidelines. At that date,
Banner Corporation’s Tier 1 Leverage Capital Ratio was 8.86% and its Total Risk
Based Capital Ratio was 11.00%. The addition of new capital through
the Treasury program will increase Banner Corporation’s Tier 1 Leverage Capital
Ratio to approximately 11.25% and Total Risk Based Capital Ratio to
approximately 13.90%.
The
preferred stock will pay a 5% dividend for the first five years, after which the
rate will increase to 9% if the preferred shares are not redeemed by the
Company. The terms and conditions of the transaction and the
preferred stock conform to those provided by the U.S. Treasury. A
summary of the Capital Purchase Program can be found on the Treasury’s web site
at www.ustreas.gov/initiatives/eesa
.. In addition to the preferred shares, the Treasury received a
warrant to purchase 1,707,989 shares of Banner Corporation common stock at a
price of $10.89 per share at any time during the next ten years. The
details of this transaction, the agreements and other documents will be filed
with the Securities and Exchange Commission (SEC) on Form 8-K.
About
Banner Corporation
Banner
Corporation is a $4.7 billion bank holding company operating two commercial
banks in Washington, Oregon and Idaho. Banner serves the Pacific
Northwest region with a full range of deposit services and business, commercial
real estate, construction, residential, agricultural and consumer
loans. Visit Banner Bank on the Web at www.bannerbank.com.
This press release contains
statements that the Company believes are “forward-looking statements.” These
statements relate to the Company’s financial condition, results of operations,
plans, objectives, future performance or business. You should not place undue
reliance on these statements, as they are subject to risks and uncertainties.
When considering these forward-looking statements, you should keep in mind these
risks and uncertainties, as well as any cautionary statements the Company may
make. Moreover, you should treat these statements as speaking only as of the
date they are made and based only on information then actually known to the
Company. There are a number of important factors that could cause future results
to differ materially from historical performance and these forward-looking
statements. Factors
which could cause actual results to differ materially include, but are not
limited, (1) adverse
developments in the capital markets in general or in the markets for financial
institutions stock in particular; (2) changes in legislation or regulatory
requirements affecting financial institutions, including the current debate in
Congress as to restructuring the financial services industry; (3) changes in the
interest rate environment; and (4) adverse changes in general economic
conditions and other risks detailed in Banner’s reports filed with the
Securities and Exchange Commission, including its Annual Report on Form 10-K for
the fiscal year ended December 31, 2007 and Form 10-Q for quarter ended June 30,
2008. Accordingly, these factors should be considered in evaluating
the forward-looking statements, and undue reliance should not be placed on such
statements.