Exhibit 10.1
SUBSCRIPTION
AGREEMENT
Series B – 8%
Cumulative Convertible Nonparticipating Perpetual Preferred
Stock
BofI Holding, Inc.
Subscription Agreement
Instructions
BofI Holding, Inc., a Delaware
corporation (the “Company”), is offering for sale up to
14,000 shares of its Series B – 8% Cumulative
Convertible Nonparticipating Perpetual Preferred Stock (the
“Shares”), as described in its letter for the offering
of Shares as of June 5, 2008 (the “Offering
Letter”). If, after thoroughly considering an investment in
the Shares, including reviewing all information you deem material
to your investment decision, you elect to subscribe for Shares,
please follow the following procedures:
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1.
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Subscription
Agreement : Please
carefully and completely read the Subscription Agreement and be
certain that you understand and agree with all of its terms. In
particular, please pay special attention to Section B., containing
the representations and warranties made by you, the investor, as
well as to Section D., containing certain understandings,
acknowledgements and agreements by you.
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2.
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Signature
Page : Please complete
and execute the appropriate Signature Page attached to this
Subscription Agreement. Please verify that you have the correct
Signature Page for the kind of person or entity that is subscribing
for Shares.
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If the Subscriber is
a(n):
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Use the Signature Page
Entitled:
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Individual
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Individual
Signature Page
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Living Trust or Inter Vivos
Trust
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Individual
Signature Page
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Individual Retirement Account
(“IRA”)
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Individual
Signature Page
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Other Retirement Plans
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Individual
Signature Page
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Corporation
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Corporation
Signature Page
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General or Limited Partnership
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Partnership
Signature Page
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Limited Liability Company
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Partnership
Signature Page
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Trust (other than living or inter vivos
trusts)
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Trust Signature
Page
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If you have any questions about the
selection of the appropriate Signature Page, please contact the
Company.
Please complete, date and execute
the Signature Page, as instructed, and return it to the Company
with the Subscription Agreement.
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3.
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IRS Form
W-9 : Please complete,
execute and return the attached IRS Form W-9.
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4.
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Return of
Executed Subscription Documents to the Company
: Please return the to the Company
in the enclosed, pre-addressed return envelope the following
subscription documents: (a) Subscription Agreement;
(b) Signature Page, Questionnaire and Certification;
(c) IRS Form W-9; and (d) a check in the full amount of
your subscription, payable to “BofI Holding, Inc.” If
you intend to wire subscription funds, please contact Andy
Micheletti (858) 350-6211 or andym@bankofinternet.com )
before wiring funds.
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Upon receipt, the Company will
review each subscription and determine its acceptability. An
incomplete or improperly completed subscription will delay
consideration and “acceptance” of your subscription.
The Company will do its best to notify you of the disposition of
your subscription as soon as reasonably practicable. The Company
reserves the right to reject any subscription, in whole or in part,
in its sole and absolute discretion
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5.
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If you have any
questions about these procedures, please direct all questions
to:
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Andy Micheletti at
(858) 350-6211 or andym@bankofinternet.com
Jerry Englert at
(858) 756-4034 or jerry1709@aol.com
Ted Allrich at
(650) 494-3885 or tedallrich@aol.com
SUBSCRIPTION
AGREEMENT
BofI Holding, Inc.
Series B Preferred
Stock
BofI Holding, Inc.
12777 High Bluff Drive, Suite 100
San Diego, California 92130
This Subscription Agreement (the
“Agreement”) is made by and between BofI Holding, Inc.,
a Delaware corporation (the “Company”), and the
undersigned subscriber who is subscribing to purchase shares of
Series B – 8% Cumulative Convertible Nonparticipating
Perpetual Preferred Stock (the “Shares”).
In consideration of the
Company’s agreement to sell Shares to the undersigned upon
the terms and conditions set forth in this Subscription Agreement,
the undersigned agrees and represents as follows:
A. SUBSCRIPTION
1. The undersigned hereby
irrevocably subscribes (the “Subscription”) for and
agrees to purchase the number of Shares at the purchase price per
Share, in the aggregate dollar amount indicated on the signature
page (the “Subscription Amount”). The undersigned
tenders with this Subscription Agreement the Subscription Amount in
immediately available funds to the Company (the
“Payment”).
2. The undersigned understands that
the Payment will be held for his, her or its benefit up to the time
the Subscription is accepted or rejected.
3. The undersigned agrees that the
Company reserves the right to reject any Subscription, in whole or
in part, in its sole discretion. The undersigned further
acknowledges and agrees that the Company will determine in its sole
discretion, if and when the Subscription is accepted.
B. REPRESENTATIONS AND WARRANTIES
OF THE INVESTOR
The undersigned hereby represents
and warrants to, and agrees with, the Company, as
follows:
1. Shares are being purchased for
the undersigned’s own account, for investment purposes only,
not for the account of any other person, and not with a view to
distribution, assignment, or resale to others, or to
fractionalization in whole or in part. No other person has or will
have a direct or indirect beneficial interest in the
undersigned’s Shares. The undersigned will not sell,
hypothecate, or otherwise transfer the undersigned’s Shares
unless:
(a) the Shares are registered
under the Securities Act of 1933 (the “Act”) and all
applicable state securities laws, or (b) in the opinion of
counsel, concurred in by counsel to the Company, an exemption from
the registration requirements of the Act and such state laws is
available.
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2. The undersigned has sufficient
savings, investments, reserves, or cash flow to withstand a
complete loss of his or her or its investment in the Company and,
to the extent the undersigned is an individual, the undersigned can
provide for his or her living expenses for the foreseeable future
assuming such a complete loss.
3. In evaluating the suitability of
an investment in the Company and in deciding to invest in Shares,
the undersigned has neither received nor relied upon any oral or
written representations from the Company or any other person,
except as expressly set forth in this Agreement. With respect to
United States tax and other economic considerations involved in
this investment, the undersigned is not relying on the Company or
any other person with respect to evaluating the suitability of an
investment in the Company. The undersigned has carefully considered
and, to the extent the undersigned believes such discussion
necessary, has discussed with the undersigned’s professional
legal, tax, accounting and financial advisors the suitability of an
investment in the Company for the undersigned’s particular
tax and financial situation, and the undersigned has determined
that the Shares being subscribed for by the undersigned are a
suitable investment for the undersigned.
4. The undersigned acknowledges that
he, she or it has read and understands the Offering Letter and the
Information Attachment, including all Exhibits thereto (the
“Information Attachment”), and acknowledges that the
Company has made available to the undersigned all documents and
information that the undersigned has requested relating to an
investment in the Company and that the undersigned considers
material, necessary and desirable to making the undersigned’s
investment decision (excluding those information requests which
would cause the Company unreasonable burden of time or expense to
provide).
5. The undersigned recognizes that
an investment in the Company involves substantial risks, including
the possibility of the loss of the entire amount of such
investment. The undersigned is capable of identifying and
evaluating all of the risks and other considerations related to the
purchase of the Shares, including but not limited to, the risk
factors and other investment considerations identified in the
Offering Letter, the Information Attachment.
6. If this Subscri
