EXHIBIT 10.46
THIS TRADING
PLAN IS SUBJECT TO ARBITRATION PURSUANT TO THE RULES OF THE
AMERICAN
ARBITRATION ASSOCIATION, AS MODIFIED HEREIN.
Rule l0b5-1 Trading Plan
This Trading
Plan dated April 11, 2005 (the "Trading Plan") is entered into
between Community Capital Corporation
("Purchaser") and FIG Partners, LLC
("FIG"), acting as agent, for the purpose
of establishing a trading plan that
complies with Rule 10b5-1(c)(1) under the
Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Purchaser and FIG agree as follows:
1. Specific Plan of Purchase.
FIG agrees to effect Purchases of common stock,
par value $1.00
per share, of Purchaser (the "Stock") on behalf of
Purchaser in
accordance with the specific instructions set forth in Exhibit
A hereto (the
"Purchases Instructions").
2. Fees/Commissions. Purchaser
shall pay FIG $.04 per share for stock
purchased; such
amount to be added by FIG to the principal purchase price
for securities
purchased under this Trading Plan.
3. Purchaser's Representations
and Warranties. As of the date hereof,
Purchaser
represents and warrants that:
(a) Purchaser is not aware of any
material nonpublic information
concerning Purchaser or any securities of Purchaser;
(b) Purchaser is entering into this
Trading Plan in good faith and not as
part of a plan or scheme to evade the prohibitions of Rule 10b5-1;
and
(c) Purchaser is not subject to any
legal, regulatory or contractual
restriction or undertaking that would prevent FIG from
conducting
purchases in accordance with this Trading Plan.
4. Agreements by Purchaser.
(a) Delivery of Funds. Purchaser
agrees to deliver the appropriate funds
for all shares of stock to be bought pursuant to this Trading
Plan
into an account at FIG in the name of and for the benefit of
Purchaser
(the "Plan Account") via normal T + 3 settlement after each and
every
purchase. Upon notification from FIG, if any, that the amount
delivered is less than the amount purchased, Purchaser agrees
to
deliver promptly to the Plan Account the appropriate funds
necessary
to eliminate this shortfall.
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(b) No Influence. Purchaser
acknowledges and agrees that Purchaser does
not have, and shall not attempt to exercise, any influence over
how,
when or whether to effect Purchases of Stock pursuant to this
Trading
Plan.
(c) Discretion. Purchaser acknowledges
and agrees that FIG and its
affiliates and any of their respective officers, employees or
other
representatives shall not exercise discretionary authority or
discretionary control in connection with effecting Purchases
under
this Trading Plan, except pursuant to the Purchaser's
Instructions
under this Trading Plan or the express provisions of this
Trading
Plan.
(d) Relief from Obligation to Effect
Purchases. Purchaser understands that
FIG may not be able to effect a Stock purchase due to a market
disruption or a legal, regulatory, or contractual restriction
applicable to FIG. If any purchase cannot be executed as required
by
this Trading Plan, due to market disruption, a legal, regulatory
or
contractual restriction applicable to FIG or any other event,
FIG
agrees to effect such purchase as promptly as practical after
the
cessation or termination of such market disruption, applicable
restriction or other event, subject to the instructions set forth
in
this letter and in Exhibit A. In the event FIG is unable to effect
a
Stock purchase for the reasons set forth in this paragraph, FIG
will
promptly notify Purchaser's representatives in accordance with
paragraph 9 below.
5. Suspension. Purchases under
this Trading Plan shall be suspended as
follows:
(a) Promptly after the date on which
FIG receives notice from Purchaser of
legal, contractual or regulatory restrictions applicable to
Purchaser
or Purchaser's affiliates that would prevent FIG from buying Stock
for
Purchaser's account during the Plan Purchases Period (as
defined
below) (such notice merely stating that there is a restriction
applicable to Purchaser without specifying the reasons for the
restriction), including a restriction based on Purchaser's
awareness
of material nonpublic information in connection with a tender
offer
for Purchaser's securities (transactions on the basis of which
Rule
14e-3 of the Exchange Act could be violated).
(b) In the event of a Qualifying
Securities Offering (as defined below),
from the Suspension Date until FIG receives notice from Purchaser
of
the Resumption Date (each as defined below); provided, however,
that
(i) FIG has received reasonable notice of such Qualifying
Securities
Offering from Purchaser; and (ii) Purchaser certifies that
Purchaser
has no control over the date on which the Preliminary Offering
Document or Underwriting Agreement (each, as defined below) is
filed,
used, distributed or executed, as the case may be.
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(c) "Qualifying Securities Offering"
means any offering of securities of
Purchaser for cash in which the lead underwriter, lead manager,
initial purchaser, placement agent or other entity performing a
similar function (each, an "Underwriter") requires Purchaser to
agree
to restrict Purchaser's ability to effect Purchases pursuant to
this
Trading Plan. "Suspension Date" means the earlier of (i) the date
on
which a preliminary prospectus, offering memorandum, offering
circular
or other disclosure document (each, a "Preliminary Offering
Document")
is first used to market securities of Purchaser by the Underwriter,
or
(ii) if no such offering document is used in connection with a
Qualifying Securities Offering, the date on which the
underwriting
agreement, purchase agreement, placement agent agreement or
similar
agreement (each, an "Underwriting Agreement") is entered into by
the
Underwriter and Purchaser. "Resumption Date" means the day
immediately
following the expiration of the time period during which Purchaser
was
restricted from effecting Purchases pursuant to this Trading Plan
in
accordance with the Underwriting Agreement.
(d) In the event that FIG becomes
aware of material nonpublic information
concerning Purchaser or the Stock, FIG may be required by
applicable
law or, in its sole discretion, find it advisable, to suspend
Purchases under this Trading Plan. In such case, FIG shall
promptly
notify Purchaser of the suspension of Purchases under this
Trading
Plan.
6. Effectiveness and
Termination. This Trading Plan is effective as of the
date first
written above and will terminate on the earliest to occur of
the
following (the
"Plan Purchases Period"):
(a) on October 31, 2005;
(b) upon the determination by FIG, or
promptly after the determination by
Purchaser and notice to FIG (either of which determinations must
be
reasonable), that this Trading Plan does not comply with Rule
10b5-1;
(c) the date that the aggregate number
of shares of Stock bought pursuant
to this Trading Plan reaches 65,156 shares; or
(d) Purchaser delivers written notice
to FIG to terminate the Trading Plan
for any reason.
7. Indemnification.
(a) Purchaser agrees to indemnify and
hold harmless FIG and its directors,
officers, employees and affiliates from and against all claims,
losses, damages and liabilities (including, without limitation,
any
legal or other expenses reasonably incurred in connection with
defending or investig
