|
1st United Bank
$5,000,000 Subordinated Capital
Note
________________________________
PURCHASE AGREEMENT
________________________________
July __, 2008
1st United Bank (the “ Bank ”), a Florida banking
corporation and wholly owned subsidiary of 1st United Bancorp, Inc.
(the “Corporation”), upon and subject to the terms and
conditions stated herein, is offering, issuing and selling (the
“ Offering ”) a subordinated capital note in the principal amount of
$5,000,000 (the “ Note
”), pursuant to exemptions from registration
under Sections 3(a)(2) and 4(2) of the Securities Act of 1933, as
amended (the “ Securities
Act ”), Securities and Exchange
Commission (the “ Commission ”) Rule 506 under
the Securities Act (“ Rule
506 ”) and Commission Rule 144A
under the Securities Act (“ Rule
144A ”). Capitalized terms used but
not defined herein shall have the meanings provided in the
certificate representing the Note, and the singular includes the
plural.
Silverton Bank, N.A. (the “
Purchaser ”),
based upon the summary term sheet (the “
Term Sheet ”),
which contained a preliminary indication of the principal terms the
Purchaser believed appropriate based upon the Purchaser’s
analysis of the Bank’s financial data and which terms are
incorporated by reference herein, hereby agrees to purchase the
Note. To the extent any terms contained in this Agreement are
inconsistent with those contained in the Term Sheet, this Agreement
supersedes and replaces those provisions in the Term
Sheet.
All references in this Agreement to “
Regulation D ”
shall mean Commission Rules 501 through 508 under the Securities
Act. For purposes hereof, the singular shall include the plural and
vice versa, and the words “include”,
“including”, “included”, and derivations
thereof shall mean without limitation by reason of enumeration or
otherwise.
In consideration of the premises, the mutual
agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by each party, the parties, intending to be legally
bound, agree as follows:
1.
Purchase of Note . Subject to the performance by the Bank of all its obligations
hereunder, and in reliance upon the completeness and accuracy of
each of the Bank’s representations, warranties and covenants,
the Purchaser, upon the terms and conditions of this Agreement,
hereby agrees to purchase the Note for the principal amount of
$5,000,000. Upon the purchase of the Note, the Bank shall pay
Purchaser a “ Loan Fee
” equal to 0.75% of the principal amount of
the Note, or $37,500.
WPB 990283.2 00025922.00018
|
|
2.
|
Closing; Delivery and Payment
.
|
(a) If the
conditions described in Section 5 hereof have been satisfied or
waived, the closing of the Offering (the “
Closing ”) will
be held at the offices of Powell Goldstein LLP, One Atlantic
Center, 1201 W. Peachtree Street, Atlanta, Georgia 30309-3488, or
such other place as is agreed upon by the Purchaser and the Bank,
as soon as practicable thereafter. The date on which the Closing is
held shall be referred to herein as the “
Closing Date .”
As part of the Closing, the Bank will deliver to the Purchaser one
or more definitive certificates representing the Note purchased
hereby and Purchaser shall deliver payment for the Note in an
amount equal to the principal amount of the Note less the Loan Fee
set forth in Section 1.
3.
Bank Representations, Warranties and Covenants . The
Bank represents and warrants to, and agrees with the Purchaser that
as of the date hereof and on the Closing Date:
(a) Neither
the Bank nor any of its “ Affiliates ” (as defined in
Rule 501 of Regulation D), nor any person acting on its or their
behalf has directly or indirectly (i) engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Note, or
(ii) made offers or sales of any security, or solicited offers to
buy or sell any security, under circumstances that would require
the registration of the Note under the Securities Act or the
securities or blue sky laws of any applicable
jurisdiction.
(b) Neither
the Bank nor any of its Affiliates, nor any person acting on its or
their behalf, has engaged or will engage in any directed selling
efforts with respect to the Note within the meaning of Regulation
S.
(c) The
Bank is not, and upon the issuance and sale of the Note and the
application of the proceeds thereof will not be, an “
investment company ” or an entity “ controlled ” by an
“ investment company
,” in each case within the meaning of Section
3(a) of the Investment Company Act of 1940, as amended (the
“ Investment Company Act
”) without regard to Section 3(c) of the
Investment Company Act.
(d) Neither
the Bank nor any of its “ Subsidiaries ” (as defined in
Commission Regulation S-X, Rule 1-02(x)) has any arrangement,
understanding or agreement to have any person to solicit offers to
purchase, to make any offers to sell, or to sell or purchase the
Note.
(e) The
Bank is a Florida commercial banking corporation duly organized,
validly existing and in good standing under the laws of its state
of organization and has the full corporate power and authority to
own, lease and operate its properties, to own its Subsidiaries, and
to conduct its business and to enter into and perform its
obligations under this Agreement. The Bank has all necessary
authorizations, approvals, registrations, orders, licenses,
certificates, consents and permits (collectively, “
Approvals ”), and
is duly qualified to transact business as a depository institution,
except to the extent that the failure to have such Approvals, to so
qualify or to be in good standing has not had and is not reasonably
likely to have a Material Adverse Effect. A “
Material Adverse Effect ” means any event, action, omission or condition that:
(i) has had or is reasonably likely to have a material adverse
effect on the condition (financial or
2
WPB 990283.2 00025922.00018
otherwise), earnings, cash flows, business or
prospects of the Bank and Bank Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (ii) has had or is reasonably likely to have a material
adverse effect on the rights of Holder of the Note, or (iii) seeks
to restrain, enjoin, limit or prohibit the execution, delivery or
performance of this Agreement or the Note. All of the outstanding
shares of capital stock of the Bank (“ Bank Shares ”) have been duly
authorized and validly issued and are fully paid and
non-assessable, and none of the outstanding Bank Shares was issued
in violation of any preemptive or similar rights of any shareholder
of the Bank.
(f) Attached
as Schedule 1 is
a list of all the Bank’s direct and indirect Subsidiaries
(“Bank Subsidiaries”). Each Bank Subsidiary has been
duly organized and is validly existing under the laws of its
jurisdiction of organization; each Bank Subsidiary has all
corporate or entity power and authority and Approvals necessary to
own, lease and operate its properties and to conduct its business
as presently operated, and is duly qualified as a foreign entity to
transact business and is in good standing in each jurisdiction
where such qualification is required, except where the failure to
so qualify or to be in good standing would not have a Material
Adverse Effect. All of the issued and outstanding shares of capital
stock of each Bank Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable, and are owned by the
Bank, directly or indirectly, free and clear of any security
interest, mortgage, pledge, lien, hypothecation, negative pledge,
charge, encumbrance, adverse claim or equity (each a “
Lien ”). None of
the outstanding shares of capital stock of any Bank Subsidiary was
issued in violation of any preemptive or similar rights of such
Bank Subsidiary arising by operation of law, under their respective
charters, articles or certificate of incorporation or
organizational documents, by-laws, or other organizational or
constituent documents (“ Organizational Documents ”), or
under any contract to which the Bank or any Bank Subsidiary is a
party. Neither the Bank nor any of its Subsidiaries beneficially
owns any shares of stock or any other equity securities of or
interest in any entity, except securities or interests held in the
ordinary course of business or securities or interests acquired in
satisfaction of debts previously contracted in good
faith.
(g) The
Bank, the Corporation and the Bank Subsidiaries operate and are in
compliance with all applicable laws, ordinances, rules and
regulations of, and all commitments to, all judgments, orders,
rulings and decrees of and agreements with (collectively,
“ Laws ”), all applicable governmental, regulatory and
self-regulatory agencies (including any securities exchange or
market where any of the Bank’s, the Corporation’s or
any Bank Subsidiary’s securities are listed or traded),
courts, arbitrators, bodies and authorities (“
Governmental Authorities ”) and all Approvals, except for those violations of
which, individually or in the aggregate, would not have a Material
Adverse Effect.
(h) The
Bank will include the Note as part of its long-term debt on its
financial statements in accordance with GAAP.
(i) The
execution, delivery and performance of this Agreement and the Note
have been duly authorized by the Bank, and, when executed and
delivered by or on behalf of the Bank, this Agreement and the Note
will be valid and binding obligations of the Bank, enforceable
against the Bank in accordance with their respective terms, except
as enforceability may be limited by bankruptcy laws, other similar
laws affecting creditors’ rights, and general
3
WPB 990283.2 00025922.00018
principles of equity affecting the availability of
specific performance and other equitable remedies. The resolutions
authorizing the Note and this Agreement shall be maintained
continuously as permanent official records of the Bank.
The Note has been duly authorized by the Bank and,
when executed, authenticated, issued and delivered against payment
therefor to the Purchaser, will be validly issued, fully paid and
nonassessable.
(j) The
execution, delivery and performance of this Agreement and the Note
(i) have been duly authorized by the Bank, (ii) do not require any
consent or Approval under, do not and will not conflict with,
constitute a breach of, or a default or an event, which with
notice, lapse of time or both would be a default under, an event or
condition that gives any person the right to require the
repurchase, redemption or repayment of all or a portion of any
note, debenture or other indebtedness of the Bank or any Bank
Subsidiary (each a “ Repayment
Event ”), (iii) will not result in
the creation or imposition of any Lien upon any property or assets
of the Bank or any of its Subsidiaries, under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument (“ Contract
”) to which the Bank or any of its
Subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of any of them is
subject, except for a conflict, breach, default or Lien which does
not have and is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect, nor will any such action
result in any violation of this Agreement.
(k) (i)
Each of the audited consolidated financial statements, including
the notes and schedules thereto, of the Corporation and its
consolidated subsidiaries (and where the Corporation has been
formed within the last five years, of its predecessors and their
respective consolidated Subsidiaries) as of and for the last full
five years (the “ Annual Financial
Statements ”) and the interim
unaudited consolidated financial statements of the Corporation and
its consolidated subsidiaries as of and for the latest interim
periods and the corresponding interim periods of the immediately
preceding year (the “ Interim
Financial Statements ,” and
collectively with the Annual Financial Statements, (the
“ Financial Statements
”) provided to the Purchaser has been prepared
in accordance with GAAP, Section 36 of the FDIA, and applicable
regulations thereunder, and to the extent the Corporation files
reports under Sections 13 or 15(d) of the 1934 Act, to the 1934 Act
and the Commission’s rules and regulations thereunder,
including Regulation S-X. Such Financial Statements, in all cases,
fairly present in all material respects the consolidated and
parent-only financial condition, earnings, cash flows and changes
in shareholders’ equity as of the dates and for the periods
therein specified, subject, in the case of Interim Financial
Statements, only to normal recurring year-end audit adjustments
that are not material, and each has been certified as required by
applicable Law. The Corporation and the Bank have a duly
constituted audit committee of its Board of Directors (the
“ Audit Committee
”), composed entirely of members who are
“independent” in accordance with applicable Law,
including FDIA Section 36, and applicable regulations thereunder.
Such Audit Committee has operated consistent in all material
respects with any applicable state and federal banking and other
Laws, and, to the extent that the Corporation files reports under
the 1934 Act or has a class of securities listed or traded on any
securities exchange or Nasdaq market, the 1934 Act, the
Commission’s rules and regulations, and the applicable rules
of such exchange or Nasdaq.
4
WPB 990283.2 00025922.00018
(ii) All the Bank’s call reports
(“ Call Reports
”) submitted to its primary federal and state
regulators conform in all material respects to the Federal
Financial Institutions Examination Council’s (“
FFIEC ”)
requirements for Call Reports, and all such Call Reports conform to
the requirements of Section 37 of the FDIA and applicable
regulations thereunder, and are accurate and complete in all
material respects and fairly present in all material respects the
reporting entity’s financial condition, earnings, cash flows
(to the extent a statement of cash flows is included pursuant to
the requirements of such forms) and changes in shareholders’
equity as of the dates and for the periods shown consistent with
the Financial Statements as of and for the corresponding dates and
periods.
(l) If required
by applicable state and federal banking, securities and other Laws,
each of the accountants who certified or reviewed the Financial
Statements are “independent public
accountants.”
(m) There are no
investigations, actions or proceedings by or before any
Governmental Authority pending, or, to the best knowledge of the
Bank, threatened against or affecting the Bank or any of its
Subsidiaries, that have had or are reasonably likely to have,
individually or in the aggregate, a Material Adverse
Effect.
(n) Since
the respective dates of the Financial Statements and Interim
Financial Statements provided to the Purchaser, there has not been
(i) any event, action, omission or condition that has had a
Material Adverse Effect, (ii) any transactions entered into by the
Bank or any Bank Subsidiary, other than in the ordinary course of
business, that are material to the Bank and its Subsidiaries
considered as one enterprise, (iii) except for any regular cash
dividends on the Bank’s common stock in the ordinary course
of business consistent with past practice, any dividend or
distribution of any kind declared, paid or made by the Bank on its
capital stock or other securities, nor (iv) any other event,
action, omission or condition that is reasonably likely to have a
Material Adverse Effect.
(o) The
Bank, the Corporation and the Bank Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management’s general and specific authorizations; (ii)
transactions are recorded as necessary to permit the preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorizations; (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences, and
(v) otherwise complies in all material respects with all applicable
federal and state banking, securities and other applicable Laws,
including th
|