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Exhibit
10.1
SECURITIES PURCHASE
AGREEMENT
SECURITIES PURCHASE
AGREEMENT (this “ Agreement ”), dated as of
December 31, 2007, by and between BNC Bancorp, a North
Carolina corporation with headquarters located at 1226 Eastchester
Drive, High Point, North Carolina (the “ Company
”), and Synovus Financial Corp., a Georgia corporation
(“ Synovus ”).
BACKGROUND
A. The Company and Synovus
are executing and delivering this Agreement in reliance upon the
exemption from registration afforded by Section 4(2) of the
Securities Act of 1933, as amended (the “ Securities
Act ”), and Rule 506 of Regulation D (“
Regulation D ”) as promulgated by the United States
Securities and Exchange Commission (the “ SEC ”)
under the Securities Act.
B. Synovus wishes to
purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, 355,544 shares of the common
stock, no par value per share (“ Common Stock
”), of the Company (the “ Securities ”) at
a purchase price per share of $15.75 (the “ Purchase
Price ”).
NOW, THEREFORE, IN
CONSIDERATION of the representations, warranties, covenants and
agreements contained in this Agreement, and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company and Synovus agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Closing . Subject
to the terms and conditions set forth in this Agreement, at the
closing of the purchase and sale of the Securities (the “
Closing ”) the Company shall issue and sell to
Synovus, and Synovus shall purchase from the Company, the
Securities at the Purchase Price. The date and time of the Closing
shall be 9:00 a.m., Eastern Standard Time, on December 31,
2007 (the “Closing Date ”). The Closing shall
take place at the offices of Brooks, Pierce, McLendon,
Humphrey & Leonard, L.L.P, 230 North Elm Street, Suite
2000, Greensboro, North Carolina.
1.2 Closing Deliveries
.
(a) At the Closing, the
Company shall deliver or cause to be delivered to Synovus one or
more stock certificates in form and substance satisfactory to
Synovus evidencing 355,544 shares of Common Stock, registered in
the name of Synovus.
(b) At the Closing, Synovus
shall deliver or cause to be delivered to the Company the Purchase
Price in United States dollars and in immediately available funds,
by wire transfer to an account designated in writing to Synovus by
the Company for such purpose.
ARTICLE II
COMPANY REPRESENTATIONS AND
WARRANTIES
2.1 Organization and Good
Standing of the Company; Organizational Documents . The Company
is a corporation duly organized, validly existing and in good
standing under the laws of the State of North Carolina and has all
requisite power and authority to own, operate and lease its
properties and to carry on its business. The Company is duly
licensed or qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts
business. True, complete and correct copies of the Company’s
articles of incorporation and by-laws, as in effect as of the date
of this Agreement, are publicly available on the website of the
SEC.
2.2 Organization and Good
Standing of Subsidiaries . Each Subsidiary of the Company is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and has all requisite
power and authority to own, operate and lease its properties and to
carry on its business, and is duly licensed or qualified to do
business in each other jurisdiction in which it owns or leases
properties, or conducts business. The deposit accounts of the
banking Subsidiaries of the Company are insured by the Federal
Deposit Insurance Corporation (the “ FDIC ”) to
the fullest extent permitted by the Federal Deposit Insurance Act
and the rules and regulations of the FDIC thereunder, and all
premiums and assessments required to be paid in connection
therewith have been paid when due. For purposes of this Agreement,
“ Subsidiary ” means, with respect to any
Person, any other Person of which 50% or more of the shares of the
voting securities or other voting interests are owned or
controlled, or the ability to select or elect 50% or more of the
directors or similar managers is held, directly or indirectly, by
such first Person or one or more of its Subsidiaries, or by such
first Person, or by such first Person and one or more of its
Subsidiaries, and “ Person ” means an
individual, corporation, association, partnership, entity, group
(as such term is used in Section 13(d)(3) of the Exchange Act
of 1934, as amended (the “ Exchange Act ”)),
trust, joint venture, business trust or unincorporated
organization, or a government or any agency or political
subdivision thereof.
2.3 Authorization; No
Conflicts; Governmental Consents .
(a) The Company has full
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby, including
the issuance of the Securities (the “ Transactions
”). The execution, delivery and performance by the Company of
this Agreement and the consummation of the Transactions have been
duly authorized by the Board of Directors of the Company. No other
proceedings on the part of the Company (including approval of the
Company’s stockholders), including under the NASDAQ rules and
regulations relating to the continued listing of the Common Stock
under the NASDAQ Capital Market, are necessary to authorize the
execution, delivery and performance by the Company of this
Agreement and consummation of the Transactions. This Agreement has
been duly and validly executed and delivered by the Company. This
Agreement is a valid and binding obligation of the Company
enforceable against the Company in accordance with its
terms.
(b) The execution, delivery
and performance of this Agreement, the consummation by the Company
of the Transactions and the compliance by the Company with any of
the provisions hereof will not conflict with, violate or result in
a breach of any
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provision of, or constitute a default
(or an event which, with notice or lapse of time or both would
constitute a default) under, or give rise to any rights of any
Person other than the parties to this Agreement or give rise to any
obligations of the Company other than under this Agreement, or
result in the termination of or accelerate the performance required
by, or result in a right of termination or acceleration under
(x) any provision of the articles of incorporation or by-laws
of the Company or (y) any mortgage, note, indenture, deed of
trust, lease, loan agreement, commitment, arrangement, written or
oral contract or other agreement or instrument or any permit,
concession, grant, franchise, license, judgment, order, decree,
ruling, injunction, statute, law, ordinance, rule or regulation
applicable to the Company or any of its properties or
assets.
(c) No consent, approval,
order or authorization of, or registration, declaration or filing
with, any Governmental Entity is required on the part of the
Company or any of its Subsidiaries in connection with the
execution, delivery and performance by the Company of this
Agreement or the consummation by the Company of the Transactions.
The Securities have been duly authorized by all necessary corporate
action. No “business combination”
“moratorium,” “control share,” “fair
price,” “takeover,” “interested
stockholder” or other takeover law is applicable to the
Transactions. For purposes of this Agreement, “
Governmental Entity ” means any court, administrative
agency or commission or other governmental authority or
instrumentality, whether federal, state, local or foreign, and any
applicable industry self-regulatory organization.
2.4 Capitalization; Valid
Issuance of Securities .
(a) The authorized capital
stock of the Company consists of 80,000,000 shares of Common Stock
of which 6,909,465 shares are issued and outstanding, and
20,000,000 shares of preferred stock of which no shares are issued
and outstanding. The Company holds no shares of Common Stock in its
treasury. There are 427,508 shares of Common Stock reserved for
issuance in connection with employee benefit, stock option and
dividend reinvestment and stock purchase plans. All of the issued
and outstanding shares of the Company’s capital stock have
been duly and validly authorized and issued and are fully paid and
nonassessable, and are not subject to preemptive rights. No bonds,
debentures, notes or other indebtedness having the right to vote on
any matters on which the stockholders of the Company may vote
(“ Voting Debt ”) are issued and outstanding.
Other than as set forth in this Section 2.4(a) or pursuant to
this Agreement, (A) no equity securities or Voting Debt of the
Company are or may be required to be issued by reason of any
options, warrants, rights to subscribe to, calls or commitments of
any character whatsoever, (B) there are outstanding no
securities or rights convertible into or exchangeable for any
equity securities or Voting Debt of the Company and (C) there
are no contracts, commitments, understandings or arrangements by
which the Company is bound to issue additional equity securities or
Voting Debt or options, warrants or rights to purchase or acquire
any additional equity securities or Voting Debt. The consummation
of the Transactions will not result in the triggering of any
anti-dilution adjustment provisions of any security of the Company
convertible into equity securities of the Company. The Securities
represent 4.9% of the Company’s issued and outstanding shares
of Common Stock as of the date of this Agreement after giving
effect to any shares of Common Stock to be issued under this
Agreement to Synovus.
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(b) All of the issued and
outstanding shares of capital stock or other equity ownership
interests of each Subsidiary of the Company are owned by the
Company, directly or indirectly, free and clear of any material
liens, pledges, charges and security interests and similar
encumbrances, and all of such shares or equity ownership interests
have been duly and validly authorized and issued and are fully paid
and nonassessable, and are not subject to preemptive rights. None
of the outstanding shares of capital stock or other securities of
any Subsidiary were issued in violation of the Securities Act or
any other applicable federal state or local law, rule or
regulation. No Subsidiary of the Company has or is bound by any
outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of
any shares of capital stock or any other equity security of such
Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity
security of such Subsidiary.
(c) When issued as
contemplated by this Agreement, the Securities (i) will be
validly issued, fully paid and non-assessable and free from all
taxes, liens, claims and encumbrances, (ii) will not be
subject to preemptive rights, rights of first refusal or other
similar rights of stockholders of the Company or any other person
and (iii) will not impose personal liability on the holder
thereof.
2.5 Reports; Financial
Statements; Controls .
(a) Except as set forth on
Schedule 2.5 , since January 1, 2005, the Company and
each of its Subsidiaries has timely filed all reports, registration
statements, proxy statements and other materials, together with any
amendments required to be made with respect thereto, that were
required to be filed with (i) the SEC under the Securities Act
or the Exchange Act (the “ SEC Reports ”),
(ii) the North Carolina Commissioner of Banks, North Carolina
Department of Commerce, (iii) the Federal Reserve Board,
(iv) the FDIC and (v) any other Governmental Entity (all
such reports and statements are collectively referred to herein as
the “ Reports ”), and have paid all fees and
assessments due and payable in connection therewith. As of their
respective dates, the Reports complied in all material respects
with all of the statutes and published rules and regulations
enforced or promulgated by the regulatory authority with which they
were filed and (i) with respect to Reports filed with the SEC,
did not as of the date of filing thereof with the SEC contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading and (ii) with respect to all
other Reports, were complete and accurate in all material respects
as of their respective dates. There are no facts relating to the
Company or any of its Subsidiaries that the Company has not
disclosed in the Reports or to Synovus in writing that,
individually or in the aggregate, have had or would reasonably be
expected to have a material adverse effect on the Company and its
Subsidiaries, taken as a whole. No executive officer of the Company
has failed to make the certifications required of him or her under
Section 302 or 906 of the Sarbanes-Oxley Act of
2002.
(b) Each of the consolidated
balance sheets, and the related consolidated statements of income,
changes in stockholders’ equity and cash flows, included in
the Reports filed with the SEC under the Exchange Act (A) have
been prepared from, and are in accordance with, the books and
records of the Company and its Subsidiaries, (B) fairly
present in all material respects the
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consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates shown and
the results of the consolidated operations, changes in
stockholders’ equity and cash flows of the Company and its
consolidated Subsidiaries for the respective fiscal periods or as
of the respective dates therein set forth, subject, in the case of
any unaudited financial statements, to normal recurring year-end
audit adjustments, (C) complied as to form, as of their
respective dates of filing with the SEC, in all material respects
with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto and
(D) have been prepared in accordance with generally accepted
accounting principles in the United States of America (“
GAAP ”) consistently applied during the periods
involved, except as otherwise set forth in the notes
thereto.
2.6 Absence of Certain
Changes . Since September 30, 2007, and except as publicly
disclosed by the Company in the Reports filed by it with the SEC
and publicly available prior to the date hereof, (a) the
Company and its Subsidiaries have conducted their respective
businesses in all material respects in the ordinary course,
consistent with prior practice, (b) the Company has not made
or declared any distribution in cash or in kind to its stockholders
or issued or repurchased any shares of its capital stock or other
equity interest, and (c) no event or events have occurred
that, individually or in the aggregate, has had or would reasonably
be expected to have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
2.7 No Undisclosed
Liabilities . Neither the Company nor any of its Subsidiaries
has any liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) that are not fully reflected or
reserved against in the financial statements described in
Section 2.5(b), except for liabilities that have arisen since
September 30, 2007 in the ordinary and usual course of
business and consistent with past practice that would not
reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
2.8 Compliance with
Law . Each of the Company and its Subsidiaries holds all
licenses, franchises, permits and authorizations necessary for the
lawful conduct of its business under, and has complied with and is
not in default or violation in any respect of, any applicable law,
statute, order, rule, regulation, policy or guideline of any
Governmental Entity.
2.9 Legal Proceedings
. There are no pending, or to the knowledge of the Company,
threatened, legal, administrative, arbitral or other proceedings,
claims, actions or governmental investigations against the Company
or any of its Subsidiaries or to which any of their assets are
subject that, (i) individually or in the aggregate, has had or
would reasonably be expected to have a material adverse effect on
the Company and its Subsidiaries, taken as a whole, or
(ii) relating to or which challenges the validity or propriety
of the Transactions. Neither the Company nor any of its
Subsidiaries is subject to any order, judgment or decree of a
Governmental Entity that, individually or in the aggregate, has had
or would reasonably be expected to have a material adverse effect
on the Company and its Subsidiaries, taken as a whole.
2.10 Regulatory
Actions . Since January 1, 2005 neither the Company nor
any of its Subsidiaries has received any written communication from
any federal or state banking authority (“ Banking
Authority ”) (i) asserting that it is in material
violation of any law, (ii) threatening to revoke any of its
material permits or licenses, (iii) requiring it (x) to
enter into or consent to the issuance of a cease and desist order,
written agreement, consent decree, directive, commitment or
memorandum of understanding, or (y) to adopt
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any policy, procedure or resolution of
its Board of Directors or similar undertaking, that restricts the
conduct of its business, or relates to its capital adequacy, its
credit or reserve policies, it management, or the payment of
dividends or any other policy or procedure or (iv) threatening
or contemplating revocation or limitation of, or which would have
the effect of revoking or limiting, FDIC deposit insurance, and
neither the Company nor any of its Subsidiaries has received any
written notice from a Banking Authority that it is considering
issuing or requiring any of the foregoing.
2.11 Offering of
Securities . Neither the Company nor any Person acting on its
behalf has offered the Securities or any similar securities of the
Company for sale to, solicited any offers to buy any of the
Securities or any similar securities of the Company from or
otherwise approached or negotiated with respect to any of the
Securities or any similar securities of the Company with any Person
other than Synovus. Neither the Company nor any Person acting on
its behalf has taken or will take any action (including any
offering of any securities of the Company under circumstances that
would require the integration of such offering with the offering of
any of the Securities under the Securities Act and the rules and
regulations of the SEC thereunder) that might subject the offering,
issuance or sale of any of the Securities to the registration
requirements of the Securities Act.
2.12 Listing; Form S-3
Eligibility . The Common Stock is currently listed for trading
on the NASDAQ Capital Market. The Company is not in violation of
the listing requirements of the NASDAQ Capital Market, does not
reasonably anticipate that the Common Stock will be delisted by the
NASDAQ Capital Market for the foreseeable future, and since
January 1, 2005 has not received any notice regarding the
possible delisting of the Common Stock from the NASDAQ Capital
Market. The Company is eligible to register the resale of its
Common Stock on a registration statement on Form S-3 under the
Securities Act. The Company is not aware of any current facts or
circumstances that would prohibit or delay the preparation and
filing of a registration statement on Form S-3 (in accordance with
the schedule provided in Article IV) with respect to the
Registrable Securities (as defined in Article IV). The Company has
no basis to believe that its past or present independent public
auditors will withhold their consent to the inclusion, or
incorporation by reference, of their audit opinion concerning the
Company’s financial statements that are to be included in the
Registration Statement required to be filed pursuant to Article
IV.
2.13 Brokers and
Finders . Except for Burke Capital Group, LLC (the fees and
expenses of which will be paid by the Company), neither the Company
nor any of its Subsidiaries nor any of their respective officers,
directors, employees or agents has utilized any broker,
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