UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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): August 23, 2012
Middlefield Banc Corp.
(Exact name of registrant specified in its charter)
| Ohio | 000-32561 | 34-1585111 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 15985 East High Street Middlefield, Ohio |
44062 | |||
| (Address of principal executive offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (440) 632-1666
not applicable
(Former name or former address, if changed since last report)
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) |
| x | 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(a) Entry into a Material Definitive Agreement
As previously reported, Middlefield Banc Corp. (“Middlefield”) and Banc Opportunity Fund LLC (“BOF”) entered into an August 15, 2011 Stock Purchase Agreement providing for the acquisition by BOF of 24.9% of Middlefield’s common stock. In accordance with the terms of the Fifth Amendment, entered into on April 17, 2012, an affiliate of BOF acquired 93,050 shares on April 17, 2012, resulting in 4.9% ownership of Middlefield’s stock, and an additional 103,585 shares on April 30, 2012, resulting in 9.9% ownership, with a third and final sale of shares scheduled to occur on or before July 31, 2012, resulting in aggregate ownership of 24.9%, assuming: (i) stockholder approval had first been obtained under the Ohio Control Share Acquisition Act, (ii) regulatory approval had also been obtained in advance, and (iii) other closing conditions had been satisfied. The conditions to completion of the third and final sale of shares to BOF were not satisfied as of July 31, 2012.
On August 23, 2012, Middlefield and BOF entered into the Sixth Amendment to the August 15, 2011 Stock Purchase Agreement, as amended, which, among other things, extended the date after which either party could give written notice of termination until November 30, 2012. In connection with the Sixth Amendment, Middlefield and BOF also entered into an Amendment to the Amended and Restated Purchaser’s Rights and Voting Agreement.
The foregoing description of the Stock Purchase Agreement, as amended, and the sale of shares to the BOF affiliate is qualified in its entirety by reference to (i) the Form 8-K Current Report filed by Middlefield with the SEC on May 4, 2012, (ii) the August 15, 2011 Stock Purchase Agreement (exhibit 10.26 to Middlefield’s Form 10-K Annual Report for the year ended December 31, 2011), (iii) the First, Second, Third, and Fourth Amendments to the Stock Purchase Agreement (exhibits 10.26.1, 10.26.2, 10.26.3, and 10.26.4 to Middlefield’s Form 10-K Annual Report for the year ended December 31, 2011), (iv) the Fifth Amendment and the Amended and Restated Purchaser’s Rights and Voting Agreement (exhibits 10.26.6 and 10.28, respectively, to Middlefield’s Form 8-K Current Report filed with the SEC on April 23, 2012), (v) the Form 8-K Current Report filed by Middlefield with the SEC on August 7, 2012, and (vi) the Sixth Amendment and Amendment to the Amended and Restated Purchaser’s Rights and Voting Agreement (attached to this Form 8-K Current Report as exhibits 10.26.7 and 10.28.1, respectively), each of which is incorporated herein by this reference.
Forward-looking statements. This Form 8-K Current Report includes forward-looking statements, as defined in the Private Securities Litigation Reform Act of 1995. Forward-looking statements include but are not limited to statements about anticipated operating and financial performance, such as loan originations, operating efficiencies, loan sales, charge-offs and loan loss provisions, growth opportunities, interest rates, and deposit growth. Words such as “may,” “could,” “should,” “would,” “believe,” “anticipate,” “estimate,” “expect,” “intend,” “project,” “plan,” and similar expressions are intended to identify forward-looking statements. These statements involve risks and uncertainties that could cause actual results to differ materially, including without limitation delays in obtaining or failure to receive required regulatory approvals, including approval by the Superintendent of the Ohio Division of Financial Institutions and by the Board of Governors of the Federal Reserve System, the possibility that fewer than the required number of the Middlefield’s stockholders vote in accordance with the Ohio Control Share Acquisition Act to approve the sale of shares to BOF, the occurrence of events that would have a material adverse effect on Middlefield as described in the Stock Purchase Agreement, as amended, and other uncertainties associated with the transactions described in this Form 8-K Current Report. Additional factors that could cause actual results to differ materially are discussed in Middlefield’s filings with the Securities and Exchange Commission, including, without limitation, Middlefield’s Form 10-K Annual Report, its Form 10-Q Quarterly Reports, and its Form 8-K Current Reports. Forward-looking statements are based on Middlefield’s beliefs, plans, objectives, goals, assumptions, expectations, estimates, and intentions as of the date the statements are made. You must exercise caution because Middlefield cannot give any assurance that its beliefs, plans, objectives, goals, assumptions, expectations, estimates, and intentions will be realized. Middlefield does not undertake a duty to update any forward-looking statements in this Form 8-K.
Additional information and where to find it. This communication may be deemed to be solicitation material. Middlefield will file with the SEC a proxy statement and other documents regarding the transaction described in this Form 8-K. MIDDLEFIELD STOCKHOLDERS ARE URGED TO READ ALL RELEVANT DOCUMENTS TO BE FILED WITH THE SEC, INCLUDING MIDDLEFIELD’S PROXY STATEMENT, BECAUSE THE PROXY STATEMENT AND OTHER DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION ABOUT THE TRANSACTION WITH BOF. Members of the public will be able to obtain the proxy statement and other relevant documents free of charge at the SEC’s website, http://www.sec.gov, and Middlefield’s stockholders will receive information at an appropriate time about how to obtain the proxy statement and other transaction-related documents for free from Middlefield. The proxy statement and other documents are not currently available. Middlefield and its directors, executive officers, certain members of management, and employees may have interests in the transaction or be deemed to be participants in the solicitation of proxies of Middlefield’s stockholders to approve the transaction with BOF. Information regarding the participants and their interest in the solicitation is set forth in the proxy statement filed by Middlefield with the SEC on April 9, 2012, for the 2012 Annual Meeting. Stockholders may obtain additional information regarding the interests of participants by reading the proxy statement relating to the transaction when the proxy statement becomes available.
| Item 9.01(d) |
Exhibits. | |
| Exhibit 10.26.7 | Sixth Amendment to the Stock Purchase Agreement dated as of August 15, 2011, between Middlefield Banc Corp. and Bank Opportunity Fund LLC (amendment dated August 23, 2012) | |
| Exhibit 10.28.1 | Amendment to Amended and Restated Purchaser’s Rights and Voting Agreement, dated April 17, 2012, between Middlefield Banc Corp. and Bank Opportunity Fund (amendment dated August 23, 2012) | |
Signatures
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.
| Middlefield Banc Corp. | ||||||
| Date: August 23, 2012 | /s/ James R. Heslop, II | |||||
| Executive Vice President and Chief Operating Officer | ||||||
EXHIBIT INDEX
| EXHIBIT NUMBER |
DESCRIPTION | |
| Exhibit 10.26.7 | Sixth Amendment to the Stock Purchase Agreement dated as of August 15, 2011, between Middlefield Banc Corp. and Bank Opportunity Fund LLC (amendment dated August 23, 2012) | |
| Exhibit 10.28.1 | Amendment to Amended and Restated Purchaser’s Rights and Voting Agreement, dated April 17, 2012, between Middlefield Banc Corp. and Bank Opportunity Fund (amendment dated August 23, 2012) | |
Exhibit 10.26.7
SIXTH AMENDMENT TO
STOCK PURCHASE AGREEMENT
DATED AS OF AUGUST 15, 2011
between
MIDDLEFIELD BANC CORP.
and
BANK OPPORTUNITY FUND LLC
Dated as of August 23, 2012
This SIXTH AMENDMENT TO THE STOCK PURCHASE AGREEMENT, dated as of August 23, 2012 (this “Amendment”), is entered into by and between Middlefield Banc Corp., an Ohio corporation (the “Company”), and Bank Opportunity Fund LLC, a Delaware limited liability company (the “Purchaser”). Certain capitalized terms used herein are defined in Section 7.17 of the Original Agreement (as hereafter defined).
RECITALS
WHEREAS, the Company and the Purchaser entered into a Stock Purchase Agreement, dated as of August 15, 2011 (the “Original Agreement”), providing for the purchase by the Purchaser of shares of the Company’s common stock, without par value (the “Common Stock”), at a per share offering price of $16.00; and
WHEREAS, the Company and the Purchaser entered into the following amendments to the Original Agreement: (i) the First Amendment to the Stock Purchase Agreement, dated as of September 29, 2011 (the “First Amendment”); (ii) the Second Amendment to the Stock Purchase Agreement, dated as of October 20, 2011 (the “Second Amendment”); (iii) the Third Amendment to the Stock Purchase Agreement, dated as of November 28, 2011 (the “Third Amendment”); (iv) the Fourth Amendment to the Stock Purchase Agreement, dated as of December 21, 2011 (the “Fourth Amendment”); and (v) the Fifth Amendment to the Stock Purchase Agreement, dated as of April 17, 2012 (the “Fifth Amendment”); and the Original Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment is herein referred to as the “Agreement”); and
WHEREAS, the Company and the Purchaser mutually desire to further amend the Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Amendment, the Parties agree as follows:
1. Article I, Section 1.01, subsection (c) of the Agreement is hereby deleted in its entirety and the following new Section 1.01, subsection (c) is inserted in place thereof:
(c) At the Subsequent Closing (as defined in Section 1.02), on the terms and subject to the conditions of this Agreement, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, a number of Shares of Common Stock that, when added to the number of Shares of Common Stock purchased by the Purchaser pursuant to Sections 1.01(a) and (b), equals 24.99% of the Company’s total outstanding shares of Common Stock as of the Subsequent Closing Date (as defined in Section 1.02), rounded down to the nearest whole share (which such amount shall include any shares issued to Purchaser pursuant to the Offering). In consideration, the Purchaser shall pay to the Company a purchase price per share of the Common Stock purchased of (i) $19.00 if the Subsequent Closing occurs on or before November 30, 2012 or (ii) the greater of (x) $19.00 and (y) 75% of the Company’s tangible book value per share as of the most recent reporting period if the Subsequent Closing occurs after November 30, 2012.
2. Article I, Section 1.02, subsection (a) of the Agreement is hereby deleted in its entirety and the following new Section 1.02, subsection (a) is inserted in place thereof:
(a) The closing of the sale and purchase contemplated by Section 1.01(a) shall take place immediately after the execution of this Agreement (such closing being referred to herein as the “Initial Closing” and the date of the Initial Closing being referred to herein as the “Initial Closing Date”). The closing of the sale and purchase contemplated by Section 1.01(b) shall take place on the third business day following the satisfaction or waiver of the conditions applicable to such closing and set forth in Article VI (other than those conditions that by their nature are to be satisfied at such Closing), which date shall not be later than April 30, 2012 (such closing being referred to herein as the “Follow-On Closing” and the date of the Follow-On Closing being referred to herein as the “Follow-On Closing Date”). The closing of the sale and purchase contemplated by Section 1.01(c) shall take place on the third business day following the satisfaction or waiver of the conditions applicable to such closing and set forth in Article VI (other than those conditions that by their nature are to be satisfied at such Closing), such closing being referred to herein as the “Subsequent Closing” and the date of the Subsequent Closing being referred to herein as the “Subsequent Closing Date”. Unless otherwise specified, the term “Closing” shall apply to each closing and the term “Closing Date” shall apply to the dates of each Closing.
3. Article II, Section 2.03, subsection (a) of the Agreement is hereby modified to substitute “1,977,321 shares” for “1,747,060 shares” in the first sentence of such subsection and to substitute “88,354 shares” for “90,528 shares” in the third sentence of such subsection.
4. Article II, Section 2.03, subsection (b) of the Agreement is hereby deleted in its entirety and the following new Section 2.03, subsection (b) is inserted in place thereof:
(b) There is no commitment by the Company or either of the Banks to issue shares, Equity Rights, or other such rights or to distribute to holders of any of its equity securities, any evidence of indebtedness or any Asset, and no agreements, Contracts, or other proposals with respect thereto are to the Knowledge of Company currently being contemplated by the Company or the Banks, except as otherwise set forth herein and except for issuances of shares under the Company’s stock option plans or the Company’s dividend reinvestment plan. The Company and the Banks have no obligation (contingent or other) to purchase, repurchase, redeem, retire or otherwise acquire any of its equity securities or any interest therein or to pay any dividend or make any other distribution in respect thereof.
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5. Article II, Section 2.28 of the Agreement is hereby deleted in its entirety and “[reserved]” is inserted in place thereof.
6. Article III, Section 3.05 of the Agreement is hereby deleted in its entirety and the following new Section 3.05 is inserted in place thereof:
Section 3.05 Company Shares. As of August 8, 2012, an Affiliate of the Purchaser owned 196,635 shares of the Company’s capital stock and, other than such Affiliate’s intention to transfer such Affiliate’s shares of the Company’s capital stock to the Purchaser in connection with the consummation of the purchase contemplated by Section 1.01(c) hereof, neither such Affiliate nor the Purchaser has entered into any agreement or understanding with any Person to purchase or sell shares of the Company’s capital stock or any agreement or understanding concerning the voting or disposition of Company capital stock or rights to acquire Company capital stock.
7. Article IV, Section 4.01, subsections (e) and (f) of the Agreement are hereby deleted in their entirety and the following new subsections (e) and (f) are inserted in place thereof:
(e) (i) split, combine, or reclassify any of the shares of Company’s Common Stock; (ii) declare, set aside, or pay any dividend or other distribution in respect of any of the Company’s securities, but dividends that are consistent with past practices shall not require the Purchaser’s consent; or (iii) repurchase, redeem, or otherwise acquire any of the Company’s securities;
(f) other than the Offering, and any other agreements to issue shares to investors to which the provisions of Section 4.07 may apply, issue or commit to issue any additional shares of the Company’s Common Stock, capital stock or other securities of any kind (whether through the issuance or granting of options, warrants, commitments, subscriptions, stock appreciation rights, rights to purchase or any other Equity Rights, but the Purchaser’s consent shall not be required for issuances of shares under the Company’s dividend reinvestment plan or issuances under the Company’s stock option plans consistent with past practice); or amend in any respect any of the terms of any such Common Stock outstanding as of the date of this Agreement; or
8. Article IV, Section 4.03 is hereby amended to add the following paragraph as a second paragraph of text:
The Purchaser shall, as promptly as practicable, advise the Company and its counsel of all material communications with the Federal Reserve or the ODFI concerning the subject matter of this Agreement or the transactions contemplated by this Agreement, including but not limited to providing to the Company and its counsel a complete copy of all written correspondence, regulatory applications, notices, e-mail correspondence, written requests from either the Federal Reserve or the ODFI for additional information or for clarification of materials submitted; provided, however, with the exception of requests for information relating to the Purchaser’s and its Affiliates’ financial ability to meet its Closing obligations under this Agreement, nothing contained herein shall be construed to require the Purchaser to disclose to the Company or its counsel any information hereunder that constitutes an attorney-client privileged communication or information that is of a confidential or proprietary nature relating to the Purchaser or any of its Affiliates, including but not limited to personal financial information such as information contained in any Interagency Biographical and Financial Statement. The Purchaser shall be entitled to redact from any such information provided to the Company or its counsel any identifying confidential information, such as brokerage account numbers, taxpayer identification numbers, etc. The Purchaser shall provide to the Company a copy of any amendment or supplement of the Confidential Offering Memorandum dated August, 2011, and Operating Agreement of the Purchaser that the Purchaser provides to the Federal Reserve or the ODFI at any time prior to the Subsequent Closing.
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9. Article IV, Section 4.04 of the Agreement is hereby modified by deleting the word “unanimously” in the second sentence thereof.
10. Article IV, Section 4.14 is hereby deleted in its entirety and the following new Section 4.14 is inserted in place thereof:
Section 4.14 Avoidance of Control.
(a) Notwithstanding anything to the contrary in this Agreement, the Company shall not take any action (including any redemption, repurchase, or recapitalization of Common Stock, or securities or rights, options or warrants to purchase Common Stock, or securities of any type whatsoever that are, or may become, convertible into or exchangeable into or exercisable for Common Stock in each case, where the Purchaser is not given the right to participate in such redemption, repurchase or recapitalization to the extent of the Purchaser’s pro rata proportion) that would cause the Purchaser’s ownership of voting securities (as defined in the BHC Act) to increase above 24.99%, without the prior written consent of the Purchaser, or to increase to an amount that would constitute “control” under the BHC Act, or otherwise cause the Purchaser to “control” the Company under and for purposes of the BHC Act.
(b) In the event that the Company breaches its obligations under Section 4.14 (a) or believes that it is reasonably likely to breach such obligations, it shall notify the Purchaser as promptly as practicable and shall cooperate in good faith with the Purchaser to modify any ownership or other arrangements or take any other action, in each case, as is necessary to cure or avoid such breach.
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(c) Without the prior written consent of the Company, the Purchaser shall not, and shall cause its Affiliates not to, purchase or otherwise acquire shares of Common Stock that would result in the Purchaser and its Affiliates collectively owning in excess of 24.99% of the issued and outstanding shares of Common Stock; provided, however, the foregoing restriction shall terminate if the Company or any of its banking Subsidiaries:
| (i) | is subject to any cease-and-desist or other order, or is a party to any written agreement or consent agreement issued under the authority of Section 8(b) of the Federal Deposit Insurance Act if the formal enforcement agreement with the FDIC or the Federal Reserve relates to capital adequacy; or |
| (ii) | is required to submit a capital restoration plan under the authority of Section 38 of the Federal Deposit Insurance Act; or |
| (iii) | any comparable formal enforcement agreement with the ODFI under applicable Ohio Law. |
(d) Notwithstanding anything to the contrary in this Agreement, the Purchaser shall not have the ability to exercise any voting rights of any securities in excess of 24.99% of the total outstanding voting securities (as defined in the BHC Act) of the Company unless the Purchaser has received the necessary approvals, Consents or non-objections from the appropriate Regulatory Authorities to exercise such voting rights.
11. Article IV, Section 4.15, subsection (a) of the Agreement is hereby deleted in its entirety and the following new Section 4.15(a) is inserted in place thereof:
Section 4.15 Legend. (a) The Purchaser agrees that all certificates or other instruments representing the Shares subject to this Agreement shall bear a legend substantially to the following effect, until such time as they are not required under Section 4.15(b):
“(i) THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.
(ii) THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN A STOCK PURCHASE AGREEMENT, AS AMENDED, COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE ISSUER.”
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12. Article VI, Section 6.01, subsection (l) of the Agreement is hereby deleted in its entirety and the following new Section 6.01, subsection (l) is inserted in place thereof:
(l) Purchaser’s Rights and Voting Agreement. The Company and the Existing Shareholders (as defined in the Purchaser’s Rights and Voting Agreement, as amended) shall have executed and delivered the Purchaser’s Rights and Voting Agreement, as amended.
13. Article VI, Section 6.02, subsection (i) of the Agreement is thereby deleted in its entirety and the following new Section 6.02, subsection (i) is inserted in place thereof:
(i) Purchaser’s Rights and Voting Agreement. The Purchaser shall have executed and delivered the Purchaser’s Rights and Voting Agreement, as amended.
14. Article VII, Section 7.02 of the Agreement is hereby deleted in its entirety and the following new Section 7.02 is inserted in place thereof:
Section 7.02 Survival of Representations and Covenants. Except as otherwise provided herein, the respective representations, warranties, covenants and agreements of the Parties shall survive for twelve (12) months after the Closing, except for this Section 7.02 and Sections 4.06(c), 4.14, 7.01 and Article V, which shall survive indefinitely or until satisfied.
15. Article VIII, Section 8.01, subsection (d) of the Agreement is hereby deleted in its entirety and the following new Section 8.01, subsection (d) is inserted in place thereof:
(d) by written notice by the Company or the Purchaser, as the case may be, in the event the Subsequent Closing has not occurred on or prior to November 30, 2012, for any reason other than delay or nonperformance of or breach by the Party seeking such termination. Notwithstanding the foregoing, in the event that the Company and the Purchaser have not been advised by the ODFI or Federal Reserve that the approvals, Consents or non-objections from the appropriate Regulatory Authorities necessary to consummate the transactions and agreements set forth in this Agreement are unlikely to be received, then the date set forth in the immediately preceding sentence shall be extended up to a maximum of 45 additional days.
16. Except as expressly amended hereby, the terms and provisions of the Agreement remain in full force and effect in all respects, and are expressly incorporated by reference in this Amendment. In the event of a conflict between the terms of this Amendment and the Agreement, the terms of this Amendment will prevail. This Amendment shall not affect any rights or obligations of the parties existing on or prior to the date hereof; provided, however, insofar as the Purchaser’s Rights and Voting Agreement, dated as of August 15, 2011 (as amended), imposes rights, duties, and obligations on the parties hereto, such rights, duties and obligations shall be governed solely by the Amendment to the Amended and Restated Purchaser’s Rights and Voting Agreement, dated as of even date herewith.
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17. A facsimile or electronic copy of any counterpart of this Amendment with a signature of a Party hereto shall be given the same legal effect as the original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Purchaser have executed this Amendment as of the day and year first above written.
| COMPANY: | ||
| MIDDLEFIELD BANC CORP. | ||
| By: | /s/ Thomas G. Caldwell | |
| Name: | Thomas G. Caldwell | |
| Title: | President and Chief Executive Officer | |
| PURCHASER: | ||
| BANK OPPORTUNITY FUND LLC | ||
| By: | Bank Acquisitions LLC, | |
| its managing member | ||
| By: | /s/ Richard J. Perry, Jr. | |
| Name: | Richard J. Perry, Jr. | |
| Title: | Managing Member |
[Signature Page to Sixth Amendment to the Stock Purchase Agreement]
Exhibit 10.28.1
AMENDMENT TO
AMENDED AND RESTATED PURCHASER’S RIGHTS AND VOTING AGREEMENT
DATED AS OF APRIL 17, 2012
between
MIDDLEFIELD BANC CORP.
and
BANK OPPORTUNITY FUND LLC
Dated as of August 23, 2012
This AMENDMENT TO THE AMENDED AND RESTATED PURCHASER’S RIGHTS AND VOTING AGREEMENT, dated as of August 23, 2012 (this “Amendment”), is entered into by and between Middlefield Banc Corp., an Ohio corporation (the “Company”), Bank Opportunity Fund LLC, a Delaware limited liability company (the “Purchaser”) , and each of the Persons listed on Schedule I attached hereto, each of whom currently serves as an officer or as a director of the Company (each, an “Existing Shareholder” and collectively, the “Existing Shareholders”).
RECITALS
WHEREAS, the Company and the Purchaser are parties to the Stock Purchase Agreement, dated as of August 15, 2011, as amended (the “Stock Purchase Agreement”), pursuant to which the Company has agreed to issue and sell, and the Purchaser has agreed to purchase, shares of the Company’s Common Stock, without par value (the “Common Stock”), and in connection therewith, the Company, the Purchaser and the Existing Shareholders entered into the Purchaser’s Rights and Voting Agreement, dated as of August 15, 2011, as amended and restated by the Amended and Restated Purchaser’s Rights and Voting Agreement, dated as of April 17, 2012 (as amended and restated, the “Original Agreement”).
WHEREAS, the Company and the Purchaser are entering into on this date the Sixth Amendment to Stock Purchase Agreement, pursuant to which they are amending the Stock Purchase Agreement, and in connection therewith, the Company, the Purchaser, and the Existing Shareholders signatory hereto, which together represent the holders of a majority of the Shareholder Shares (as defined below) now outstanding, desire to amend the Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Amendment, the Parties agree as follows:
1. Article I, Section 1.01 of the Agreement is hereby deleted in its entirety and the following new Section 1.01 is inserted in place thereof:
Section 1.01 Agreement to Vote. The Purchaser, as a holder of Common Stock, hereby agrees to vote for so long as one director designated by Purchaser is serving on the Board pursuant to Section 2.02 hereof: (a) all of the shares of Common Stock registered in its name and (b) as of the date of any given vote, any other voting securities (or voting rights associated with any other securities) of the Company that the Purchaser holds (hereinafter collectively referred to as the “Purchaser Shares”) at regular and special meetings of the Company’s shareholders (or by written consent) in accordance with the provisions of this Agreement. Subject to Section 5.03 hereof, for as long as the Existing Shareholder is serving as an employee or director of the Company or of a subsidiary bank of the Company, each Existing Shareholder agrees to vote: (x) all of the shares of Common Stock registered in its name and (y) as of the date of any vote, any other voting securities (or voting rights associated with any other securities) of the Company that such Existing Shareholder holds (hereinafter collectively referred to as the “Shareholder Shares”) at regular and special meetings of the Company’s shareholders (or by written consent) in accordance with the provisions of this Agreement. For purposes of this obligation on the part of Existing Shareholders, the term Existing Shareholder includes any Affiliate of the Existing Shareholder. The Purchaser Shares and Shareholder Shares are collectively referred to herein as the “Shares.”
2. Article II, Section 2.02 of the Agreement is hereby modified to change the heading to read in its entirety as “Election of One Director; Board Representation.”
3. The second sentence of Article IV, Section 4.03 of the Agreement is hereby modified to change the word “directors” in the second instance thereof to “director”.
4. The second sentence of Article IV, Section 4.04(a) of the Agreement is hereby modified to change the word “directors” to “director”.
5. Article V, Section 5.01, clause (d) is hereby amended by deleting the words “twenty-fifth” and inserting in the place thereof the word “twelfth”.
6. Article IV, Section 4.05 is hereby deleted in its entirety and the following new Section 4.05 is inserted thereof:
Section 4.05 Legend on Share Certificates. Each certificate representing any shares of the Company’s capital stock subject to this Agreement, and any certificates representing shares of the Company’s capital stock which may be issued in the future to Existing Shareholders or to the Purchaser and transfers of shares for which an Adoption Agreement is required by the terms of Section 5.03, shall be endorsed by the Company with a legend reading substantially as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE ISSUER), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.”
7. Article V, Section 5.03 is hereby amended by adding the following clause at the end of such Section:
This Agreement, and the rights and obligations of the Existing Shareholders hereunder, shall be transferred to all Persons, other than Exempt Transferees (as defined below), to which Shareholder Shares are transferred in accordance with this Agreement by an Existing Shareholder and, notwithstanding anything to the contrary in this Agreement, no transfer of Shareholder Shares (other than any acquisition of such shares by the Purchaser) by any Existing Shareholder other than to an Exempt Transferee shall be effective unless the transferee shall have executed and delivered an Adoption Agreement substantially in the form attached hereto as Exhibit A. For purposes of this Agreement, an “Exempt Transferee” is any purchaser of Shareholder Shares that is not a Related Party of the transferor and purchases the Shareholder Shares in an open-market transaction through a FINRA-registered broker-dealer. A “Related Party” is any Affiliate of the transferor, any officer, director, employee or Affiliate of the Company or any of its subsidiaries, any individual that is related by blood, marriage or adoption to any of the foregoing individuals or any entity in which any such Persons owns any beneficial interest.
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8. Except as expressly amended hereby, the terms and provisions of the Agreement remain in full force and effect in all respects, and are expressly incorporated by reference in this Amendment. In the event of a conflict between the terms of this Amendment and the Agreement, the terms of this Amendment will prevail.
9. A facsimile or electronic copy of any counterpart of this Amendment with a signature of a Party hereto shall be given the same legal effect as the original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and year first above written.
| COMPANY: | ||
| MIDDLEFIELD BANC CORP. | ||
| By: | /s/ Thomas G. Caldwell | |
| Name: | Thomas G. Caldwell | |
| Title: | President and Chief Executive Officer | |
| PURCHASER: | ||
| BANK OPPORTUNITY FUND LLC | ||
| By: | Bank Acquisitions LLC, | |
| its managing member | ||
| By: | /s/ Richard J. Perry, Jr. | |
| Name: | Richard J. Perry, Jr. | |
| Title: | Managing Member |
[Signature Page to Amendment to Amended and Restated Purchaser’s Rights and Voting Agreement]
| EXISTING SHAREHOLDERS: |
|
|
| Thomas G. Caldwell |
|
|
| Richard T. Coyne |
|
|
| James R. Heslop, II |
|
|
| Eric W. Hummel |
|
|
| Kenneth E. Jones |
|
|
| James J. McCaskey |
|
|
| William J. Skidmore |
|
|
| Robert W. Toth |
|
|
| Carolyn J. Turk |
|
|
| Jay P. Giles |
|
|
| Donald L. Stacy |
|
|
| Teresa M. Hetrick |
|
|
| Alfred F. Thompson, Jr. |
SCHEDULE I
EXISTING SHAREHOLDERS
| SHAREHOLDER NAME |
SHARES OF COMMON STOCK | |||
| Directors |
||||
| Thomas G. Caldwell Director, President, and Chief Executive Officer |
14,042 | |||
| Richard T. Coyne Director and Chairman of the Board |
6,044 | |||
| James R. Heslop, II Director, Executive Vice President, and Chief Operating Officer |
5,588 | |||
| Eric W. Hummel Director |
3,226 | |||
| Kenneth E. Jones Director |
5,888 | |||
| James J. McCaskey Director |
2,269 | |||
| William J. Skidmore Director |
3,887 | |||
| Robert W. Toth Director |
16,839 | |||
| Carolyn J. Turk Director |
8,962 | |||
| Officers |
||||
| Jay P. Giles Senior Vice President and Senior Loan Officer |
1,537 | |||
| Donald L. Stacy CFO and Treasurer |
2,141 | |||
| Teresa M. Hetrick Senior Vice President — Operations/Administration |
207 | |||
| Alfred F. Thompson, Jr. Vice President/Loan Administration |
268 | |||