UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 19, 2013 (September 13, 2013)
OPTIMUMBANK HOLDINGS, INC.
(Exact name of registrant as specified in charter)
| Florida | 000-50755 | 55-0865043 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
2477 East Commercial Boulevard, Fort Lauderdale, FL 33308
(Address of Principal Executive Offices) (Zip Code)
(954) 776-2332
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into Material Definitive Agreement.
Letter Agreement between the Company, Moishe Gubin and Joel Klein
On September 13, 2013, the Company, Moishe Gubin and Joel Klein entered into a letter agreement (the “Letter Agreement”), pursuant to which Mr. Gubin assigned to Joel Klein the right to purchase 83,333 shares of Company’s common stock under the Amended and Restated Stock Purchase Agreement dated March 22, 2013 between the Company and Mr. Gubin (the “Purchase Agreement”). Both Mr. Gubin and Mr. Klein are directors of the Company.
Under the Purchase Agreement, Mr. Gubin agreed to purchase 1,833,333 shares of Company common stock, $0.01 par value, at a price of $1.20 per share.
Under the Letter Agreement, Mr. Klein agreed to assume the obligation to purchase 83,333 of these shares. Mr. Klein completed the purchase of the shares on September 13, 2013, and paid the purchase price of $100,000 to the Company.
As a result of Mr. Klein’s purchase, the remaining number of shares to be purchased by Mr. Gubin under the Purchase Agreement has been reduced to 1,750,000 shares.
The proceeds from the sale to Mr. Klein will be utilized by the Company to meet its working capital obligations.
The foregoing description of the Klein purchase and the terms of the Letter Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Stock Purchase Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K (this “Report”) and incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth under Item 1.01 of this report is incorporated herein by reference. The sale of shares to Mr. Klein was not registered under the Securities Act, in reliance on the exemption provided by Section 4(2) under the Securities Act of 1933.
Forward-Looking Statements
This report contains forward-looking statements, which are included in accordance with the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “could,” “expects,” “plans,” “intends,” “anticipates,” “believes,” “estimates,” “predicts,” “potential,” or “continue,” or the negative of such terms and other comparable terminology. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ from those expressed or implied by the forward-looking statement. These factors include the following: inability to consummate the proposed transactions with Investor on the terms contemplated in the Securities Purchase Agreement; failure to receive regulatory or stockholder approval for the Transaction; inability to continue as a going concern; inability to raise additional capital on acceptable terms or at all; failure to maintain adequate levels of capital and liquidity to support our operations; the effect of regulatory orders we have entered into and potential future supervisory action against us or OptimumBank; general economic and business conditions internationally, nationally and in those areas in which we operate; volatility and deterioration in the credit and equity markets; changes in consumer spending, borrowing and savings habits; availability of capital from private and government sources; demographic changes; competition for loans and deposits and failure to attract or retain loans and deposits; fluctuations in interest rates and a decline in the level of our interest rate spread; risks of natural disasters related to our real estate portfolio; risks associated with Small Business Administration loans; failure to attract or retain key employees; changes in governmental regulation, including, but not limited to, any increase in FDIC insurance premiums; ability to receive regulatory approval for OptimumBank to declare dividends to the Company; adequacy of our allowance for loan losses, credit quality and the effect of credit quality on our provision for credit losses and allowance for loan losses; changes in the financial performance and/or condition of our borrowers and the ability of our borrowers to perform under the terms of their loans and other terms of credit agreements; our ability to successfully integrate acquisitions we may make; our ability to control expenses; and changes in securities markets.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit |
Description | |
| 10.1 | Letter Agreement dated as of September 13, 2013 between OptimumBank Holdings, Inc., Moishe Gubin and Joel Klein | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| September 19, 2013 | By: | /s/ Thomas Procelli | ||||
| Thomas Procelli | ||||||
| Chief Operating Officer | ||||||
INDEX TO EXHIBITS
| Exhibit |
Description | |
| 10.1 | Letter Agreement, dated as of September 13, 2013, between OptimumBank Holdings, Inc., Moishe Gubin and Joel Klein | |
Exhibit 10.1
Moishe Gubin
2477 E. Commercial Boulevard
Fort Lauderdale, Florida 33308
September 13, 2013
| OptimumBank Holdings, Inc. 2477 E. Commercial Boulevard Fort Lauderdale, Florida 33308 |
Mr. Joel Klein 2477 E. Commercial Boulevard Fort Lauderdale, Florida 33308 |
| Re: | Amended and Restated Stock Purchase Agreement dated as of March 22, 2013 between OptimumBank Holdings, Inc. and Moishe Gubin (the “Purchase Agreement”) |
Gentlemen:
The purpose of this letter is to set forth the agreement between OptimumBank Holdings, Inc. (the “Company”), Moishe Gubin (“Mr. Gubin”) and Joel Klein (“Mr. Klein”) with respect to: (i) the amendment of the Purchase Agreement to reflect the assignment of the right to purchase 83,333 shares of the Company’s common stock under the Purchase Agreement from Mr. Gubin to Mr. Klein; and (ii) the agreement of Mr. Klein to purchase the 83,333 shares promptly after the execution of this letter agreement. In particular, we have agreed as follows:
1. Definitions. Capitalized terms used in this letter agreement have the meanings assigned to them in the Purchase Agreement, unless otherwise defined in this letter.
2. Certain Acknowledgments. The parties hereby acknowledge the following:
(a) The Company and Mr. Gubin have entered into Purchase Agreement pursuant to which Mr. Gubin agreed to purchase 1,833,333 shares of Common Stock for the price of $1.20 per share.
(b) The purchase of Shares by Mr. Gubin pursuant to the terms of the Purchase Agreement has been delayed by the continuing processing the regulatory applications filed by Mr. Gubin with the applicable federal and state banking regulators with respect to the purchase.
(c) Mr. Klein, who serves as a director of the Company, has agreed to purchase a portion of the shares under the Purchase Agreement in order to provide the Company with additional working capital.
OptimumBank Holdings, Inc., and
Mr. Joel Klein
September 13, 2013
Page 2
3. Assignment of Purchase Rights.
(a) Mr. Gubin hereby assigns to Mr. Klein the right to purchase 83,333 Shares under the terms of the Purchase Agreement. Mr. Klein hereby assumes the obligation to purchase such Shares, and agrees to complete the purchase promptly after the date of this letter agreement. Additionally, Mr. Klein hereby confirms that all of the representations and warranties specified in Section 6 of the Agreement, to the extent that such representations and warranties relate to Mr. Klein’s purchase of the shares, are deemed to be made by Mr. Klein to the Company. The Company hereby consents to the assignment.
(b) Mr. Klein specifically acknowledges and agrees that:
(i) The Shares have not been registered under the Securities Act or any state securities laws and are being offered and sold in reliance upon exemptions provided in the Securities Act and state securities laws for transactions not involving any public offering and, therefore, cannot be resold or transferred unless they are subsequently registered under the Securities Act and such applicable state securities laws or unless an exemption from such registration is available.
(ii) He has no contract, understanding, agreement or arrangement with any person to sell or transfer or pledge to such person or anyone else any of the Shares for which he hereby subscribes (in whole or in part); and he has no present plans to enter into any such contract, undertaking, agreement or arrangement.
4. Ratification of Agreement. Except as amended by the terms of this letter, all of the terms and conditions of the Purchase Agreement are hereby ratified, confirmed and approved.
[Signature Page Follows]
OptimumBank Holdings, Inc., and
Mr. Joel Klein
September 13, 2013
Page 3
If this letter accurately sets forth our agreement, please execute this letter in the space provided below and return a copy to the undersigned.
| Sincerely yours, |
| /s/ Moishe Gubin |
Agreed and Accepted:
OptimumBank Holdings, Inc.
By: /s/ Thomas Procelli
Thomas Procelli, Chief Operating Officer
/s/ Joel Klein
Joel Klein