|
Exhibit
10.1
SERIES A NON-CUMULATIVE
PERPETUAL PREFERRED STOCK
PURCHASE
AGREEMENT
THIS SERIES A
NON-CUMULATIVE PERPETUAL PREFERRED STOCK PURCHASE AGREEMENT (the
“ Agreement ”) is made as of the 10th day of
December, 2007 by and between Belvedere SoCal, a California
corporation (the “ Company ”), and Belvedere
Capital Fund II L.P. (the “ Purchaser
”).
RECITALS
WHEREAS , the Company
desires to sell to the Purchaser, and the Purchaser desires to
purchase from the Company, the number of shares of Series A
Non-Cumulative Perpetual Preferred Stock of the Company (the
“ Series A Non-Cumulative Perpetual Preferred Stock
”) set forth opposite the Purchaser’s name on
Exhibit A , on the terms and conditions set forth
herein;
NOW, THEREFORE , the
parties hereto, intending to be legally bound and in consideration
of the premises and the mutual covenants herein contained, agree to
the following:
AGREEMENT
The parties hereby agree as
follows:
1. Purchase and Sale of
Preferred Stock.
1.1. Sale and Issuance of
Series A Non-Cumulative Perpetual Preferred Stock.
(a) Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase at
the Closing and the Company agrees to sell and issue to the
Purchaser at the Closing that number of shares of Series A
Non-Cumulative Perpetual Preferred Stock set forth opposite the
Purchaser’s name on Exhibit A , at a purchase price of
$25.00 per share. The shares of Series A Non-Cumulative Perpetual
Preferred Stock issued to the Purchaser pursuant to this Agreement
shall be referred to in this Agreement as the “ Shares
.”
(b) On or before the Closing
(as defined below in Section 1.2 ), the Company shall
have authorized the sale and issuance to each Purchaser of the
Shares. The Shares shall have the rights, preferences, privileges
and restrictions set forth in the Certificate of Determination for
Series A Non-Cumulative Perpetual Preferred Stock of the Company,
substantially in the form of Exhibit B attached to this
Agreement (the “ Certificate of Determination
”).
1.2. Closing;
Delivery.
(a) The purchase and sale of
the Shares shall take place remotely via the exchange of documents
and signatures, at 9:00 a.m., on December 10, 2007, or at such
other time and place as the Company and the Purchaser shall
mutually agree upon, orally or in writing (which time and place are
designated as the “ Closing ”).
(b) At the Closing, the
Company shall deliver to the Purchaser a certificate representing
the Shares being purchased by the Purchaser at the Closing against
payment of the purchase price therefor by wire transfer to a bank
account designated by the Company.
1.3. Defined Terms Used in
this Agreement. In addition to the terms defined above, the
following terms used in this Agreement shall be construed to have
the meanings set forth or referenced below.
“ Material Adverse
Effect ” means a material adverse effect on the business,
prospects, assets (including intangible assets), liabilities,
financial condition, property or results of operations of the
Company.
“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
1.4. Legends and
Transfers. (a) The Shares will be issued with the following
legend:
“THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
TRANSFER MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS.”
(b) The Company will
cooperate with the Purchaser with respect to any transfer of the
Shares by the Purchaser to any other person in compliance with
applicable securities laws, including issuing new
certificates.
1.5. Fee . The Company
will pay the Purchaser a fee of $400,000 in cash at the
Closing:
1.6. Representations and
Warranties of the Company. The Company hereby represents and
warrants to the Purchaser that:
1.7. Organization, Good
Standing, Corporate Power and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of California and has all requisite
corporate power and authority to carry on its business as presently
conducted and as proposed to be conducted. The Company is duly
qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
Material Adverse Effect.
2
1.8. Capitalization.
The authorized capital of the Company consists, immediately prior
to the Closing, of:
(a) Twenty Million
(20,000,000) shares of common stock, no par value per share
(the “ Common Stock ”). All of the outstanding
shares of Common Stock have been duly authorized, are fully paid
and nonassessable and were issued in compliance with all applicable
federal and state securities laws.
(b) Twenty Million
(20,000,000) shares of Preferred Stock, 2,000,000 of which
have been designated Series A Non-Cumulative Perpetual Preferred
Stock, none of which are issued and outstanding immediately prior
to the Closing. The rights, privileges and preferences of the
Preferred Stock are as stated in the Certificate of Determination
and as provided by the general corporation law of the State of
California.
1.9. Authorization.
All corporate action required to be taken by the Company’s
Board of Directors and stockholders in order to authorize the
Company to enter into this Agreement, and to issue the Shares at
the Closing, has been taken or will be taken prior to the Closing.
All action on the part of the officers of the Company necessary for
the execution and delivery of this Agreement, the performance of
all obligations of the Company under this Agreement to be performed
as of the Closing, and the issuance and delivery of the Shares has
been taken or will be taken prior to the Closing. This Agreement
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms except
(i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other laws of
general application relating to or affecting the enforcement of
creditors’ rights generally, or (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
1.10. Valid Issuance of
Shares. The Shares, when issued, sold and delivered in
accordance with the terms and for the consideration set forth in
this Agreement, will be validly issued, fully paid and
nonassessable and free of restrictions on transfer other than
restrictions on transfer under this Agreement, applicable state and
federal securities laws and liens or encumbrances created by or
imposed by the Purchaser. Assuming the accuracy of the
representations of the Purchaser in Section 3 of this
Agreement and subject to the filings described in
Section 2.5(ii) below, the Shares will be issued in
compliance with all applicable federal and state securities
laws.
1.11. Governmental
Consents and Filings. Assuming the accuracy of the
representations made by the Purchaser in Section 3 of
this Agreement, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing
with, any federal, state or local governmental authority is
required on the part of the Company in connection with the
consummation of the transactions contemplated by this Agreement,
except for (i) the filing of the Certificate of Determination,
which will have been filed as of the Closing, and (ii) filings
pursuant to Regulation D of the Securities Act, and applicable
state securities laws, which have been made or will be made in a
timely manner.
3
1.12. Litigation.
There is no claim, action, suit, proceeding, arbitration,
complaint, charge or investigation pending or to the best of the
Company’s knowledge, currently threatened before any court,
administrative agency, or other governmental body (nor, to the
Company’s knowledge, is there any basis for any such action,
suit, proceeding, arbitration, complaint, charge or investigation)
(i) against the Company or any officer or director of the
Company arising out of their employment or board relationship with
the Company; (ii) that questions the validity of this
Agreement or the right of the Company to enter into it, or to
consummate the transactions contemplated by this Agreement; or
(iii) to the Company’s knowledge, that would reasonably
be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
1.13. Compliance with
Other Instruments. The Company is not, and has not been since
its inception, in violation or default (i) of any provisions
of its Certificate of Incorporation or Bylaws, (ii) of any
instrument, judgment, order, writ or decree, (iii) under any
note, indenture or mortgage, or (iv) under any lease,
agreement, contract or purchase order to which it is a party or by
which it is bound, or, to its knowledge, of any provision of
federal or state statute, rule or regulation applicable to the
Company, the violation of which would have a Material Adverse
Effect. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this
Agreement will not result in any such violation or be in conflict
with or constitute, with or without the passage of time and giving
of notice, either (i) a default under any such provision,
instrument, judgment, order, writ, decree, contract or agreement or
(ii) an event which results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the
suspension, revocation, forfeiture, or nonrenewal of any material
permit or license applicable to the Company.
1.14. Disclosure.
Neither this Agreement nor any other agreement or exhibit entered
into or deliv
|
