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EXHIBIT 4-1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of January 24, 2005 (this
"Agreement"), by and among The Banc Corporation, a Delaware
corporation (the
"Company"), and the purchasers named on the signature pages
hereto
(individually, an "Investor", and collectively, the
"Investors");
WHEREAS, each of the Investors wishes to purchase, and the
Company
wishes to issue and sell to each of the Investors, the number of
shares of
common stock, par value $0.001 per share (the "Common Shares"),
set forth below
such Investor's name on the signature pages of this Agreement;
and
WHEREAS, concurrently with the execution of this Agreement, each
of the
Investors shall enter into a Registration Rights Agreement (the
"Registration
Rights Agreement") with the Company, and certain of the
Investors shall enter
into employment agreements with the Company and shall be
appointed to the
Company's Board of Directors.
In consideration of the premises and mutual agreements herein
contained
and other good and valuable consideration, the receipt and
sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE I
AUTHORIZATION; PURCHASE OF COMMON SHARES
Section 1.1 The Common Shares. The Company has authorized the
issuance
and sale pursuant to this Agreement of the Common Shares, each
having such
rights, restrictions, and privileges as are contained in or
accorded by (A) the
Restated Certificate of Incorporation (the "Certificate of
Incorporation") of
the Company, (B) the Bylaws of the Company, and (C) the
Registration Rights
Agreement. Subject to the terms and conditions hereof, the
Common Shares will be
delivered to the Investors on the Closing Date (as defined in
Section 2.1).
Section 1.2 The Purchase of Common Shares. Subject to the terms
and
conditions of this Agreement, each Investor hereby irrevocably
agrees to
purchase the number of Common Shares set forth below the
Investor's name on the
signature page hereto for the purchase price specified in
Section 2.1 hereof. An
Investor shall not be obligated to purchase any Common Shares
unless the
conditions set forth in Article V hereof shall have been
satisfied or waived.
The Company shall not be obligated to sell any Common Shares
unless the
conditions set forth in Article VI hereof shall have been
satisfied or waived.
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ARTICLE II
CLOSING
Section 2.1 Sale and Purchase of the Common Shares.
(a) Subject to the terms and conditions of this Agreement,
the
closing of the purchase and sale of the Common Shares provided
for in this
Agreement (the "Closing") shall occur on January 24, 2005, or on
such later date
as may be agreed upon in writing by the Company and the
Investors (the "Closing
Date"). At the Closing, the Company shall sell to each of the
Investors, and
each of the Investors shall purchase from the Company, the
number of Common
Shares set forth below the Investor's name on the signature page
hereto at a
purchase price per Common Share equal to the publicly reported
per share closing
price of the Company's common stock on the last trading day
immediately
preceding the Closing Date (the "Per Share Purchase Price"). On
the Closing
Date, each Investor shall deliver the Aggregate Purchase Price
(as defined
below) by wire transfer of immediately available U.S. funds to
an account to be
designated by the Company; provided, however, that if so
directed by the
Company, each Investor shall, prior to the Closing Date, deliver
the Aggregate
Purchase Price, in immediately available U.S. funds, into an
escrow account
pursuant to an escrow agreement (the "Escrow Agreement"), the
form and substance
of which shall be agreed upon by the parties hereto. The
aggregate purchase
price for the number of Common Shares to be purchased by each
Investor shall be
the number of Common Shares purchased by each Investor
multiplied by the Per
Share Purchase Price (the "Aggregate Purchase Price").
(b) As soon as practicable after the Closing, the Company
shall deliver, or cause to be delivered, to each of the
Investors one or more
certificates registered in the name of each such Investor
representing the
aggregate number of Common Shares purchased by such Investor
against payment of
such Investor's Aggregate Purchase Price in accordance with the
provisions of
Section 2.1(a) hereof.
Section 2.2 Place of Closing. The Closing will take place at
the
offices of Bradley Arant Rose & White LLP, One Federal
Place, 1819 Fifth Avenue
North, Birmingham, Alabama 35203.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Investors
as
follows:
Section 3.1 Due Organization, Valid Existence and Authority of
the
Company. The Company is a corporation duly organized and validly
existing under
the laws of the State of Delaware. The Company has the corporate
power and
authority to carry on its business as presently proposed to be
conducted and is
duly licensed or qualified to do business and in good standing
in each
jurisdiction in which its ownership or leasing of property or
the conduct of its
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business requires such licensing or qualification, except where
the failure to
be so licensed, qualified or in good standing would not have a
material adverse
effect on the financial condition, business or results of
operations of the
Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"). The
Company has full right, power and authority to enter into this
Agreement, the
Registration Rights Agreement and the Escrow Agreement and to
perform its
obligations hereunder and thereunder.
Section 3.2 Authorization and Validity of Agreements. This
Agreement,
the Registration Rights Agreement and the Escrow Agreement have
been duly
authorized, executed and delivered by the Company and constitute
the valid and
binding obligations of the Company, enforceable against the
Company in
accordance with their respective terms, except as may be limited
by (i)
applicable bankruptcy, reorganization, insolvency, moratorium
and/or similar
laws relating to or affecting the rights of creditors generally,
including
without limitation fraudulent conveyance provisions under
applicable laws; (ii)
general principles of equity (regardless of whether considered
in a proceeding
in equity or at law); and (iii) applicable laws relating to or
affecting rights
to indemnity and contribution.
Section 3.3 Capitalization.
(a) The authorized capital stock of the Company consists of
(i) 25,000,000 shares of common stock, par value $0.001 per
share, of which, as
of December 31, 2004, 17,749,846 shares are issued and
outstanding, and (ii)
5,000,000 shares of Series A Convertible Preferred Stock, par
value $0.001 per
share (the "Preferred Stock"), of which 62,000 shares are issued
and
outstanding, in each case having the rights, preferences and
privileges
specified in the Certificate of Incorporation and the Bylaws of
the Company.
(b) Except (i) as set forth above, (ii) as provided for in
connection with the transactions contemplated hereby, and (iii)
as disclosed in
the Company's publicly available filings with the Securities and
Exchange
Commission (the "SEC"), including exhibits thereto, there are no
(A) outstanding
securities of the Company evidencing the right to purchase or
subscribe for any
shares of capital stock of the Company, (B) outstanding or
authorized options,
warrants, calls, subscriptions, rights, commitments or any other
agreements of
any character obligating the Company to issue any shares of its
capital stock or
any securities convertible into or evidencing the right to
purchase or subscribe
for any shares of such stock, or (C) agreements or
understandings with respect
to the voting, sale or transfer of any shares of capital stock
of the Company.
(c) All the Common Shares issuable by the Company pursuant
to
this Agreement will be, when issued and paid for and delivered
in accordance
with the terms of this Agreement, duly authorized, validly
issued, fully paid
and nonassessable.
Section 3.4 Approvals Required.
(a) Neither the execution and delivery of this Agreement or
the Registration Rights Agreement, nor the consummation of the
transactions
contemplated hereby or thereby, nor compliance by the Company
with any of the
provisions hereof or thereof will (i) conflict
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with or result in a breach of any provision of the Certificate
of Incorporation
or Bylaws of the Company, (ii) constitute or result in a breach
of any term,
condition or provision of, or constitute a default under, or
give rise to any
right of termination, cancellation or acceleration with respect
to, or result in
the creation of any lien, charge or encumbrance upon any
property or asset of
the Company pursuant to, any note, bond, mortgage, indenture,
license, agreement
or other instrument or obligation to which the Company is a
party, or (iii)
violate any order, writ, injunction, decree, statute, rule or
regulation
applicable to the Company, except (in the case of clauses (ii)
and (iii) above)
for such violations, rights, conflicts, breaches, creations or
defaults which,
either individually or in the aggregate, will not have a
Material Adverse Effect
on the Company and its subsidiaries taken as a whole or
adversely affect the
Company's right or ability to perform this Agreement or the
Registration Rights
Agreement.
(b) No consent, approval or authorization (which has not
been
obtained) of, or declaration, notice, filing or registration
with, any
governmental or regulatory authority, or any other person, is
required to be
made or obtained by the Company in connection with the execution
and delivery by
the Company of this Agreement or the consummation by the Company
of the
transactions contemplated hereby, except (i) any notice filings
required by Rule
503 promulgated by the SEC and applicable state securities laws,
(ii) any Forms
3 required to be filed with the SEC, and (iii) the Form 8-K to
be filed with the
SEC following the Closing Date, disclosing certain terms of the
transactions
contemplated by this Agreement.
Section 3.5 Private Offering of the Common Shares.
(a) The offer, issuance, sale and delivery of the Common
Shares pursuant to this Agreement is intended to be exempt from
the registration
requirements of the Securities Act of 1933, as amended (the
"Securities Act").
Neither the Company nor anyone acting on its behalf has taken or
will take any
action with respect to the Common Shares, or any securities
similar to the
Common Shares, or otherwise, that would bring the issuance and
sale of the
Common Shares within the registration requirements of the
Securities Act or
comparable provisions of any applicable state securities
laws.
(b) In the case of each offer or sale of the Common Shares,
no
form of general solicitation or general advertising (as those
terms are used in
Regulation D under the Securities Act) was used in connection
with the offering
of Common Shares by the Company or, to the best knowledge of the
Company, any
person authorized to act on behalf of the Company, including,
but not limited
to, any advertisement, article, notice or other communication
published in any
newspaper, magazine or similar medium or broadcast over
television or radio, or
any seminar or meeting whose attendees have been invited by any
general
solicitation or general advertising.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE INVESTORS
Each of the Investors hereby represents and warrants to the
Company as
follows:
Section 4.1 Authority of the Investor. If an Investor is a
natural
person, such Investor represents and warrants that (i) he is
over 21 years of
age, (ii) the address set forth under his name on the signature
page hereof is
his true and correct address and residence, and (iii) he has no
current
intention of becoming a resident of any other state or
jurisdiction in the
foreseeable future, unless such change in residence shall occur
following the
Closing in connection with an Investor's employment with the
Company or any of
its subsidiaries. If an Investor is not a natural person, (v)
such Investor has
the full legal right, power, authority and approval required to
(A) execute and
deliver, or authorize the execution and delivery of, this
Agreement, the
Registration Rights and the Escrow Agreement and all other
instruments executed
and delivered by or on behalf of such Investor in connection
with the purchase
of Common Shares, and (B) purchase and hold such Common Shares,
(w) the
signature of the party signing on behalf of such Investor is
binding upon such
Investor, (x) the address set forth under such Investor's name
on the signature
page hereof is its true and correct address, (y) such Investor
has no current
intention of changing its address to any other state or
jurisdiction in the
foreseeable future, and (z) such Investor has not been formed
for the specific
purpose of acquiring such Common Shares, unless each beneficial
owner of equity
securities or equity interests in such Investor qualifies as an
"accredited
investor" within the meaning of Rule 501(a) under the Securities
Act.
Section 4.2 Authorization and Validity of Agreements. This
Agreement,
the Registration Rights Agreement and the Escrow Agreement have
been duly
authorized, executed and delivered by such Investor and
constitute the valid and
binding obligations of such Investor, enforceable against such
Investor in
accordance with their respective terms, except as may be limited
by (i)
applicable bankruptcy, reorganization, insolvency, moratorium
and/or similar
laws relating to or affecting the rights of creditors generally,
including
without limitation fraudulent conveyance provisions under
applicable laws; (ii)
general principles of equity (regardless of whether considered
in a proceeding
in equity or at law); and (iii) applicable laws relating to or
affecting rights
to indemnity and contribution.
Section 4.3 Investment Intent. (a) Each Investor, severally and
not
jointly, represents and warrants to, and covenants and agrees
with, the Company
that the Common Shares to be acquired by such Investor hereunder
are being
acquired for such Investor's own account.
(a) Each Investor, severally and not jointly, represents and
warrants to, and covenants and agrees with, the Company that the
Common Shares
being acquired by such Investor hereunder are being acquired for
investment and
with no intention of distributing or reselling such Common
Shares or any part
thereof or interest therein in any transaction which would be in
violation of
the securities laws of the United States or any state, without
prejudice,
however, to an Investor's right, subject to the provisions of
this Agreement and
the Registration Rights Agreement, at all times to sell or
otherwise dispose of
all or any part of such Common
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Shares under an effective registration statement under the
Securities Act and
other applicable state securities laws or under an exemption
from such
registration requirements, and subject, nevertheless, to the
disposition of an
Investor's property being at all times within such Investor's
control. Each
Investor, severally and not jointly, further represents and
warrants to the
Company that such Investor has no present agreement,
understanding, plan or
intent to transfer the Common Shares to be purchased by such
Investor, or any
part thereof or interest therein, to any transferee.
Section 4.4 Transfer Restrictions. If an Investor should decide
to
dispose of any of the Common Shares, such Investor understands
and agrees that
such Investor may do so only pursuant to an effective
registration statement
under the Securities Act or as set forth below: (i) to the
Company, (ii) to any
person reasonably believed by such Investor to be a "qualified
institutional
buyer" (as defined in Rule 144A under the Securities Act) in
compliance with
Rule 144A under the Securities Act, (iii) pursuant to an
exemption from
registration set forth in Rule 144 under the Securities Act,
(iv) to any person
who is reasonably believed by such Investor to be an "accredited
investor" (as
defined in Rule 501(a) under the Securities Act) and who, prior
to such
transfer, furnishes to the Investor and the Company a signed
letter confirming
such Investor's status as an accredited investor and agreeing to
the
restrictions on transfer of the Common Shares set forth in this
Agreement or (v)
to any Affiliate (as such term is defined in Rule 144 under the
Securities Act)
of such Investor pursuant to an applicable exemption under the
Securities Act.
In connection with any transfer of any Common Shares other than
(i) any transfer
pursuant to an effective registration statement or (ii) any
transfer to a
qualified institutional buyer, the Company may require that the
transferor of
any such Common Shares provide to the Company an opinion of
counsel selected by
the transferor, which counsel shall be and the form and
substance of which
opinion shall be reasonably satisfactory to the Company, to the
effect that such
transfer does not require registration of such Common Shares
under the
Securities Act or any state securities laws. In connection with
any transfer
pursuant to clause (ii) above, the Company may request
reasonable certification
as to the status of the transferor's transferee as a qualified
institutional
buyer.
Section 4.5 No Conflict with Other Instruments; No Approvals
Required
Except as Have Been Obtained.
(a) Neither the execution and delivery of this Agreement or
the Registration Rights Agreement, nor the consummation of the
transactions
contemplated hereby or thereby, nor compliance by the Investor
with any of the
provisions hereof or thereof shall (i) constitute or result in a
breach of any
term, condition or provision of, or constitute a default under,
or give rise to
any right of termination, cancellation or acceleration with
respect to, or
result in the creation of any lien, charge or encumbrance upon
any property or
asset of such Investor pursuant to, any note, bond, mortgage,
indenture,
license, agreement or other instrument or obligation, or (ii)
violate any order,
writ, injunction, decree, statute, rule or regulation applicable
to such
Investor, except for such violations, rights, conflicts,
breaches, creations or
defaults which, either individually or in the aggregate, will
not have a
Material Adverse Effect on such Investor or adversely affect
such Investor's
right or ability to perform this Agreement or the Registration
Rights Agreement.
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(b) No consent, approval or authorization of, or
declaration,
notice (except as previously disclosed in writing to the Company
prior to the
date hereof), filing or registration with, any governmental or
regulatory
authority, or any other person, is required to be made or
obtained by the
Investor in connection with the execution and delivery of this
Agreement by the
Investor or the consummation by the Investor of the transactions
contemplated
hereby.
Section 4.6 Investor Awareness. Each Investor acknowledges,
agrees and
is aware that:
(i) an investment in the Common Shares involves a high
degree of risk, and such Investor may lose the entire amount of
such
Investor's investment;
(ii) the Common Shares have not been registered under the
Securities Act or under the securities laws of any other
jurisdiction,
and, except as provided in the Registration Rights Agreement,
the
Company is under no obligation to, and currently does not intend
to,
register or qualify the Common Shares for resale by such
Investor or
assist such Investor in complying with any exemption under
the
Securities Act or the securities laws of any other jurisdiction;
an
offer or sale of Common Shares by such Investor in the absence
of
registration under the Securities Act will require the
availability of
an exemption thereunder; a restrictive legend in substantially
the form
set forth in Section 7.1 hereof shall be placed on the
certificates
representing the Common Shares; and a notation shall be made in
the
appropriate records of the Company and its transfer agent
indicating
that the Common Shares are subject to restrictions on
transfer;
(iii) such Investor shall hold the Common Shares subject to,
and shall have voting rights with respect to the Common Shares
as
specified in, the Certificate of Incorporation and Bylaws of
the
Company, as the same may be amended from time to time; and
(iv) the Common Shares have not been approved or disapproved
by the SEC, any state securities commission or other
regulatory
authority, nor have any of the foregoing authorities passed upon
or
endorsed the merits of the Company's offer to sell the Common
Shares or
the accuracy or adequacy of the Company's disclosures contained
in this
Agreement or in the Other Documents (as such term is defined in
Section
4.8 hereof).
Section 4.7 Accredited Investor. Each Investor qualifies as
an
"accredited investor" within the meaning of Rule 501 under the
Securities Act,
being:
(i) a bank as defined in Section 3(a)(2) of the Securities
Act or a savings and loan association or other institution as
defined
in Section (3)(a)(5)(A) of the Securities Act whether acting in
its
individual or fiduciary capacity; a broker dealer registered
pursuant
to Section 15 of the Securities Exchange Act of 1934; an
insurance
company as defined in Section 2(13) of the Securities Act;
an
investment company registered under the Investment Company Act
of 1940
or a
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business development company as defined in Section 2(a)(48) of
that
Act; a Small Business Investment Company licensed by the U. S.
Small
Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958; a plan established and
maintained by a
state, its political subdivisions, or an agency or
instrumentality of
such state or its political subdivisions, for the benefit of
its
employees, if such plan has total assets in excess of U.S.
$5,000,000;
an employee benefit plan within the meaning of the Employee
Retirement
Income Security Act of 1974, if the investment decision is made
by a
plan fiduciary, as defined in Section 3(21) of such Act, which
is
either a bank, savings and
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