EXHIBIT 10.1
PINNACLE FINANCIAL PARTNERS, INC.
STOCK PURCHASE AGREEMENT
Dated as of July 17, 2008
To
Each of the Purchasers Listed in the Signature Page:
Ladies
and Gentlemen:
The undersigned, Pinnacle Financial
Partners, Inc., a Tennessee corporation (the
“Corporation”), hereby agrees with you as
follows:
1. AUTHORIZATION; SALE AND PURCHASE
OF SHARES
1.1 Authorization of Shares .
The Corporation has duly authorized the issuance and sale of up to
an aggregate of 1,000,000 shares (the “Shares”) of
common stock, $1.00 par value of the Corporation (the “Common
Stock”), As applicable, the Shares are sometimes referred to
herein as the “Securities”.
1.2 Sale and Purchase of the
Shares . Subject to the terms and conditions herein provided,
the Corporation hereby agrees to sell to the purchasers listed in
the Signature Page, attached hereto (each, a
“Purchaser” and collectively the
“Purchasers”), and each Purchaser, severally and not
jointly, agrees to purchase from the Corporation, at the Closing
provided for in Section 2 hereof, up to that number of Shares
specified opposite its name in the Signature Page. The per share
purchase price for the Securities shall be equal to the price per
share as reflected on the Signature Pages hereof. Each
Purchaser’s obligations hereunder are several and not joint
obligations, and no Purchaser shall have any liability to any
person or entity for the performance or nonperformance by any other
Purchaser hereunder. Each Purchaser understands and acknowledges
that it has made its own review of the investment merits and risks
of the Securities.
1.3 On the date hereof, the
Corporation and each Purchaser are entering into that certain
Registration Rights Agreement, between the Corporation and each
Purchaser, in the form of Exhibit A hereto, which provides the
Purchasers with certain registration rights with respect to the
Shares being purchased hereunder (the “Registration Rights
Agreement”, together with this Agreement, and each of the
other agreements entered into by the parties hereto in connection
with the transactions contemplated by this Agreement (collectively,
the “Transaction Documents”).
2. THE CLOSING.
2.1 Time and Place of the
Closing . Subject to Section 3 hereof, payment of the
purchase price for and delivery of the Shares shall be made at the
offices of Bass, Berry & Sims
PLC, 315
Deaderick Street, Suite 2700, Nashville, TN 37238, or at such
other place or in such other manner as may be agreed upon by the
Corporation and the Purchasers, at 9:00 a.m., Nashville time, on
July 22, 2008, or at such other time or date as the Purchasers
and the Corporation may mutually determine (such date and time of
payment and delivery being herein called the “Closing
Date”).
2.2 Delivery of and Payment for
the Shares . At the Closing, the Corporation shall instruct the
Corporation’s transfer agent to deliver to each Purchaser, at
such address(es) as designated on its Signature Page, certificates
evidencing the Securities to be purchased by it (as indicated
opposite such Purchaser’s name on the Signature Page hereto),
dated the Closing Date and bearing appropriate legends as
hereinafter provided for, and registered on the books and records
of the Corporation in such Purchaser’s name or its nominee,
against payment in full on the Closing Date of the aggregate
purchase price therefor by wire transfer of immediately available
funds for credit to such account as the Corporation shall direct in
writing prior to the Closing Date.
3. CONDITIONS TO CLOSING
3.1 Conditions to the
Purchasers’ Obligations . The obligations of each
Purchaser hereunder are subject to the accuracy, as of the date
hereof and on the Closing Date, of the representations and
warranties of the Corporation contained herein, except to the
extent any such representation or warranty expressly speaks as of
an earlier date, and to the performance by the Corporation of its
obligations hereunder and to each of the following additional terms
and conditions:
(a) The
Corporation will have furnished to the Purchasers a certificate,
dated the Closing Date, executed on behalf of the Corporation by
each of the President and Chief Executive Officer and the Chief
Financial Officer of the Corporation, stating that:
(i) The
representations and warranties of the Corporation in
Section 4.1 hereof shall be true and correct as of the Closing
Date, except to the extent any such representation or warranty
expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct as of such
earlier date; and
(ii) the
Corporation shall have complied in all material respects with all
its agreements contained herein; and
(iii) Such
officers have carefully examined the Disclosure Materials (as
defined in Section 4.1(e) hereof) and, in their opinion, as of
their respective dates (except to the extent superseded by
statements in later-filed documents comprising part of the
Disclosure Materials), and as of the Closing Date, the Disclosure
Materials do not contain any untrue statement of a material fact
nor omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(b) From
the date hereof to the Closing Date, there shall not have been any
event or series of events, change, occurrence or development or a
state of circumstances or facts (including any events, changes,
occurrences, developments, state of circumstances or facts existing
prior to the date hereof but which become known during the period
from the date hereof
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to the
Closing Date), that, individually or in the aggregate, has had, or
would reasonably be expected to have, a Material Adverse Effect (as
defined in Section 4.1(g) hereof).
(c) Any
authorizations, consents, commitments, agreements, orders or
approvals of, or declarations or filings with, or expirations of
waiting periods imposed by any federal, state or local court or
governmental or regulatory agency or authority or applicable stock
exchange or trading market (any such court, agency, authority,
exchange or market, a “Governmental Authority”)
required for the consummation of the Transactions, as defined
herein, shall have been obtained or filed or shall have occurred
and any such orders shall have become final, non-appealable
orders.
(d) The
Corporation shall have executed and delivered to such Purchaser
each of the Transaction Documents.
(e) Bass,
Berry & Sims PLC, counsel to the Corporation, shall have
furnished to the Purchasers its written opinion, substantially in
the form of Exhibit B, addressed to the Purchasers and dated
the Closing Date.
3.2 Conditions to the
Corporation’s Obligations . The obligations of the
Corporation hereunder are subject to the accuracy, as of the date
hereof and as of the Closing Date, of the representations and
warranties of each Purchaser contained herein and to the
performance by each Purchaser of its obligations hereunder and to
each of the following additional terms and conditions:
(a) The
Purchasers shall have received any and all necessary approvals from
all Governmental Authorities necessary for the purchase by the
Purchasers of the Shares as the case may be, pursuant to this
Agreement, and any and all applicable waiting periods upon which
such approvals are conditioned shall have expired; and
(b) Such
Purchaser shall have executed each of the Transaction Documents of
which it is a party and delivered the same to the
Corporation.
4. REPRESENTATIONS AND
WARRANTIES
4.1 Representations, Warranties
and Agreements of the Corporation . The Corporation represents
and warrants to, and agrees with each Purchaser that as of the date
hereof:
(a) The
authorized capital stock of the Corporation consists of 90,000,000
shares of Common Stock, $1.00 par value, of which 22,587,680 shares
of Common Stock are outstanding as of the date of this Agreement
and 10,000,000 shares of preferred stock, $1.00 par value, of which
no shares are outstanding as of the date of this Agreement.
(b) Since
December 31, 2007, the Corporation and each Subsidiary have
filed all material reports, registrations and statements, together
with any required amendments thereto, that it was required to file
with the Board of Governors of the Federal Reserve System (the
“Federal Reserve”), the Securities and Exchange
Commission (the “SEC”), the Office of the Comptroller
of the Currency (the “OCC”), and any other applicable
federal or state securities or banking authorities, except where
the failure to file any such report, registration or
statement
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would
not reasonably be expected to have a Material Adverse Effect (as
defined below). All such reports and statements filed with any such
regulatory body or authority are collectively referred to herein as
the “Corporation Reports”. As of their respective
dates, the Corporation Reports complied as to form in all material
respects with all the rules and regulations promulgated by the
Federal Reserve, the OCC and any other applicable foreign, federal
or state securities or banking authorities, as the case may
be.
(c) Except
as previously disclosed in writing to the Purchasers, since
December 31, 2007, no change has occurred and no circumstances
exist (including any changes, occurrences, circumstances or facts
existing prior to December 31, 2007 but which become known on
or after December 31, 2007) that is not disclosed in the
Disclosure Materials (as defined below) which, individually or in
the aggregate,has had or would reasonably be expected to have a
Material Adverse Effect.
(d) The
Corporation and each Subsidiary have all permits, licenses,
authorizations, orders and approvals of, and have made all filings,
applications and registrations with, any governmental entities that
are required in order to carry on their business as presently
conducted and that are material to the business of the Corporation
or its Subsidiaries, except where the failure to have such permits,
licenses, authorizations, orders and approvals or the failure to
make such filings, applications and registrations would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and all such permits, licenses,
certificates of authority, orders and approvals are in full force
and effect and, to the knowledge of the Corporation, no suspension
or cancellation of any of them is threatened, and all such filings,
applications and registrations are current.
(e) The
Corporation has furnished to each Purchaser or otherwise made
available a copy of each of the following: (i) the
Corporation’s Annual Report on Form 10-K for the year ended
December 31, 2007, as filed with the SEC; (ii) the
Corporation’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2008; (iii) the Corporation’s proxy
statement for its Annual Meeting of Stockholders held on
April 15, 2008, as filed with the SEC on March 14, 2008;
and (iv) the Corporation’s Current Reports on Form 8-K
filed with the SEC since December 31, 2007, pursuant to the
reporting requirements of the Securities and Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder
(the “Exchange Act”), (items (i) through
(iv) collectively, the “Disclosure Materials”),
which Disclosure Materials include, among other things, audited
consolidated financial statements of the Corporation for its fiscal
years ended December 31, 2005, 2006 and 2007. As of the date
hereof and as of the Closing Date, each of the documents comprising
a part of the Disclosure Materials, when such documents are
considered together as a whole, did not contain or will not contain
any untrue statement of material fact or omitted to state or will
not omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) Based
upon the representations and warranties of each Purchaser contained
herein, the Corporation is not required by applicable law or
regulation in connection with the offer, sale and delivery of the
Securities to the Purchasers in the manner contemplated by this
Agreement to register the Securities under the Securities Act of
1933, as amended (the “Securities Act”), or any state
securities laws.
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(g) The
Corporation and the Corporation’s wholly-owned Subsidiaries,
(i) have been duly incorporated or organized and are validly
existing in good standing under the laws of their respective
jurisdictions of incorporation or organization, (ii) are duly
qualified to do business and are in good standing as foreign
corporations or organizations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified would not reasonably be expected to
result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Corporation and its Subsidiaries (taken as a
whole), or which would not reasonably be expected to materially and
adversely affect the assets or properties of the Corporation and
its Subsidiaries (taken as a whole), or which would not reasonably
be expected to materially and adversely affect the ability of the
Corporation to perform its obligations under the Transaction
Documents (individually or in the aggregate, a “Material
Adverse Effect”, except that the mere filing of any action,
claim, suit or order relating to any actual or threatened
litigation involving the Corporation, its Subsidiaries or any of
its employees after the date of this Agreement (rather than the
actual facts and circumstances underlying such action, claim, suit
or order) shall not be deemed a “Material Adverse
Effect”); and (iii) have all corporate power and
authority necessary to own or hold their respective properties and
to conduct the businesses in which they are currently
engaged.
(h) All
of the issued shares of capital stock of the Corporation have been
duly and validly authorized and issued, are fully paid and
non-assessable and no such shares were issued in violation of the
preemptive or similar rights of any security holder of the
Corporation. No person has any preemptive or similar statutory or
contractual right to purchase any shares of capital stock of the
Corporation. Except as disclosed in the Disclosure Materials and
for the 2,827,451 shares of Common Stock reserved for issuance
under the Corporation’s equity compensation or other employee
benefit or compensation plans, arrangements, or agreements, there
are no outstanding warrants, options or other rights to subscribe
for or purchase any of the Corporation’s capital stock and no
restrictions upon the voting or transfer of any capital stock of
the Corporation pursuant to the Corporation’s charter or
bylaws or any agreement or other instrument to which the
Corporation is a party or by which the Corporation is bound.
(i) The
Securities have been duly authorized by the Corporation and, when
issued and delivered by the Corporation against payment therefor in
the manner contemplated by this Agreement, will be validly issued,
fully paid and non-assessable, free from all taxes, liens and
charges with respect to the issue thereof, and the issuance of the
Securities will not obligate the Corporation to issue shares of
capital stock to any person.
(j) This
Agreement has been duly authorized, executed and delivered by the
Corporation and constitutes a valid and legally binding agreement
of the Corporation enforceable against the Corporation in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, and
general equitable principles (whether considered in a proceeding in
equity or at law).
(k) The
execution, delivery and performance of this Agreement, the issuance
and sale of the Securities in the manner contemplated hereby, and
the consummation of the transactions contemplated herein
(collectively, the “Transactions”), will not
(i) conflict with or constitute a violation of, or default
(with the passage of time or the delivery of notice) under,
(A) any bond, debenture, note or other evidence of
indebtedness, or any agreement, lease, franchise,
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license,
permit, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which
the Corporation or any of its Subsidiaries is a party or by which
it or any of its Subsidiaries or their property is bound, where
such conflict, violation or default would reasonably be expected to
have a Material Adverse Effect, or (B) to the knowledge of the
Corporation, any law, administrative regulation, ordinance or
judgment, order or decree of any court or governmental agency,
arbitration panel or authority binding upon the Corporation or any
of its Subsidiaries or any of their property, where such conflict,
violation or default would reasonably be expected to have a
Material Adverse Effect, or (ii) violate any of the provisions
of the Charter, as amended, or By-laws, as amended, of the
Corporation; and no consent, approval, authorization or order of,
or filing or registration with any such person (including, without
limitation, any such court or governmental agency or body) is
required for the consummation of the Transactions by the
Corporation, except such as may be required under state securities
laws or Regulation D under the Securities Act, or required by
The Nasdaq Stock Market.
(l) The
audited consolidated financial statements (including the related
notes) included or incorporated in the Disclosure Materials present
fairly, in all material respects, the financial condition and
results of operations of the Corporation and its Subsidiaries, at
the dates and for the periods indicated, and have been prepared in
conformity with U.S. generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved.
(m) Except
as disclosed in the Disclosure Materials or as previously disclosed
to the Purchasers, there is no action, suit or proceeding before or
by any court or governmental agency or body or any labor dispute
now pending or, to the knowledge of the Corporation, threatened
against the Corporation or its Subsidiaries, which would reasonably
be expected to have a Material Adverse Effect. To the best
knowledge of the Corporation, all pending legal, arbitral or
governmental proceedings or investigations to which the Corporation
or its Subsidiaries are a party or have been threatened, or of
which any of their assets or properties is the subject which are
not described in the Disclosure Materials, including ordinary
routine litigation incidental to the business of the Corporation or
its Subsidiaries, are, considered in the aggregate, not material to
the Corporation and its Subsidiaries.
(n) No
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the
Transactions is in effect.
(o) Except
as disclosed in the Disclosure Materials, neither the Corporation
nor any subsidiary has engaged in conduct that it knew to be a
violation of any applicable law or contractual obligation relating
to the recruitment, hiring, extension of offers of employment,
retention or solicitation of any current employee of the
Corporation or any subsidiary where such conduct would reasonably
be expected to have a Material Adverse Effect. To the knowledge of
the Corporation, no executive officer is, or is expected to be, in
violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or
non-competition agreement, or any other contract or agreement or
any restrictive covenant where such violation would reasonably be
expected to have a Material Adverse Effect, and to the knowledge of
the Corporation the continued employment of each such executive
officer does not subject the Corporation or any of its subsidiaries
to any material liability with respect to any of the foregoing
matters.
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(p) No
broker’s, finder’s, investment banker’s or
similar fee or commission has been paid or will be payable by the
Corporation with respect to, or for any services rendered to the
Corporation ancillary to, the offer, issue and sale of the
Securities contemplated by this Agreement.
(q) Except
as set forth in the Disclosure Materials, the Corporation does not
own or control, directly or indirectly, any Significant Subsidiary
as defined in SEC Regulation S-X. For the purposes of this
Agreement, the term “Subsidiary” shall mean any:
(a) firm, corporation, partnership, limited liability company,
trust or other entity (a “Person”) of which the
Corporation owns (i) at least 5% of the outstanding voting
capital stock (or other outstanding voting shares of beneficial
interest), or (ii) at least a majority of the partnership,
membership, joint venture or similar interests;
(b) partnership in which the Company is a general partner; or
(c) limited liability company in which the Corporation is the
manager or the managing member. Except for short-term investments,
the Corporation does not own any shares of stock or any other
equity or long-term debt securities of any corporation or have any
equity interest in any firm, partnership, limited liability
company, joint venture, association or other entity except as set
forth in the Disclosure Materials.
(r) All
material agreements to which the Corporation and its Subsidiaries
is a party and which are required to have been filed by the
Corporation pursuant to SEC Regulation S-K have been filed by
the Corporation with the SEC pursuant to the requirements of the
Securities Act or the Exchange Act, as applicable. Except for such
agreements that have expired or terminated in accordance with their
terms prior to the date hereof, each such agreement is in full
force and effect and is binding on the Corporation and/or its
Subsidiaries, as applicable, and, to the knowledge of the
Corporation, is binding upon such other parties, in each case in
accordance with its terms, and neither the Corporation, any of its
Subsidiaries nor, to the knowledge of the Corporation, any other
party thereto, is in breach of or default under any such agreement,
which breach or default would reasonably be expected to have a
Material Adverse Effect. Neither the Corporation, nor any of its
Subsidiaries, has received any written notice regarding the
termination of any such agreements.
(s) Each
of the Corporation and its Subsidiaries has filed on a timely basis
all material federal, state, local and foreign income and franchise
tax returns required to be filed by it through the date hereof or
had properly requested extension thereof and has paid all material
taxes shown as due thereon, and any related material assessments,
fines or penalties. Each of the Corporation and its Subsidiaries
has made reasonably adequate charges, accruals and reserves in the
applicable financial statements referred to in this
Section 4.1(s) in respect of all federal, state, local and
foreign income and franchise taxes for all periods as to which the
tax liability of the Corporation and its Subsidiaries has not been
finally determined. The Corporation has no knowledge of a material
tax deficiency which has been or is reasonably likely to be
asserted or threatened against it or any of its Subsidiaries.
(t) To
its knowledge, the Corporation and its Subsidiaries are in
compliance with all applicable laws, rules, regulations, orders,
decrees and judgments applicable to it, including, without
limitation, all applicable local, state and federal environmental
laws and regulations and the provisions of the Sarbanes-Oxley Act
of 2002, as amended (“Sarbanes-Ox
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