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| VIST > SEC Filings for VIST > Form 8-K on 23-Dec-2008 | All Recent SEC Filings |
23-Dec-2008
Entry into a Material Definitive Agreement, Unregistered Sale of Equity Secur
Entry into Purchase Agreement
On December 19, 2008, VIST Financial Corp. (the "Company") entered into a Letter
Agreement (the "Purchase Agreement") with the United States Department of the
Treasury ("Treasury"), pursuant to which the Company agreed to issue and sell
(i) 25,000 shares of the Company's Fixed Rate Cumulative Perpetual Preferred
Stock, Series A, par value $0.01 per share (the "Series A Preferred Stock"), and
(ii) a warrant (the "Warrant") to purchase 364,078 shares of the Company's
common stock, par value $5.00 per share (the "Common Stock"), for an aggregate
purchase price of $25,000,000 in cash. The Purchase Agreement is attached as
Exhibit 10.1 hereto and is incorporated herein by reference.
The Series A Preferred Stock will qualify as Tier 1 capital and will pay cumulative dividends at a rate of 5% per annum for the first five years, and 9% per annum thereafter. The Series A Preferred Stock may be redeemed by the Company after three years. Prior to the end of three years, the Series A Preferred Stock may be redeemed by the Company only with proceeds from the sale of qualifying equity securities of the Company (a "Qualified Equity Offering"). The restrictions on redemption are set forth in the Certificate of Designations described in Item 5.03 below.
The Warrant has a 10-year term and is immediately exercisable upon its issuance, with an exercise price, subject to anti-dilution adjustments, equal to $10.30 per share of the Common Stock. The Warrant is attached as Exhibit 4.2hereto and is incorporated herein by reference.
If the Company receives aggregate gross cash proceeds of not less than $25,000,000 from Qualified Equity Offerings on or prior to December 31, 2009, the number of shares of Common Stock issuable pursuant to Treasury's exercise of the Warrant will be reduced by one half of the original number of shares, taking into account all adjustments, underlying the Warrant. Pursuant to the Purchase Agreement, Treasury has agreed not to exercise voting power with respect to any shares of Common Stock issued upon exercise of the Warrant.
The Series A Preferred Stock and the Warrant were issued in a private placement exempt from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended. Upon the request of Treasury at any time, the Company has agreed to promptly register the Series A Preferred Stock, the Warrant, and the shares of Common Stock underlying the Warrant (the "Warrant Shares"). Neither the Series A Preferred Stock nor the Warrant will be subject to any contractual restrictions on transfer, except that Treasury may only transfer or exercise an aggregate of one-half of the Warrant Shares prior to the earlier of the redemption of 100% of the shares of Series A Preferred Stock and December 31, 2009.
In the Purchase Agreement, the Company agreed that, until such time as Treasury
ceases to own any debt or equity securities of the Company acquired pursuant to
the Purchase Agreement, the Company will take all necessary action to ensure
that its benefit plans with respect to its senior executive officers comply with
Section 111(b) of the Emergency Economic Stabilization Act of 2008 (the "EESA")
as implemented by any guidance or regulation under the EESA that has been issued
and is in effect as of the date of issuance of the Series A Preferred Stock and
the Warrant, and has agreed to not adopt any benefit plans with respect to, or
which covers, its senior executive officers that do not comply with the EESA,
and the applicable executives have consented to the foregoing.
The foregoing description of the Purchase Agreement and the Warrant and the transactions contemplated thereunder does not purport to be complete and is qualified in its entirety by reference to the Purchase Agreement and the Warrant, which are attached hereto as Exhibits 10.1 and 4.2, respectively, and . . .
The information set forth under "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
Upon issuance of the Series A Preferred Stock on December 19, 2008, the ability of the Company to declare or pay dividends or distributions on, or purchase, redeem or otherwise acquire for consideration, shares of its Junior Stock (as defined below) and Parity Stock (as defined below) will be subject to restrictions, including the Company's restriction against increasing dividends from the last quarterly cash dividend per share ($0.10) declared on the Common Stock prior to October 14, 2008. The redemption, purchase or other acquisition of trust preferred securities of the Company or its affiliates also will be restricted. These restrictions will terminate on the earlier of (a) the third anniversary of the date of issuance of the Series A Preferred Stock and (b) the date on which the Series A Preferred Stock has been redeemed in whole or Treasury has transferred all of the Series A Preferred Stock to third parties. The restrictions described in this paragraph are set forth in the Purchase Agreement.
In addition, pursuant to the Certificate of Designations, the ability of the Company to declare or pay dividends or distributions on, or repurchase, redeem or otherwise acquire for consideration, shares of its Junior Stock and Parity Stock will be subject to restrictions in the event that the Company fails to declare and pay full dividends (or declare and set aside a sum sufficient for payment thereof) on its Series A Preferred Stock. These restrictions are set forth in the Certificate of Designations described in Item 5.03.
"Junior Stock" means the Common Stock and any other class or series of stock of the Company the terms of which expressly provide that it ranks junior to the Series A Preferred Stock as to dividend rights and/or rights on liquidation, dissolution or winding up of the Company. "Parity Stock" means any class or series of stock of the Company the terms of which do not expressly provide that such class or series will rank senior or junior to the Series A Preferred Stock as to dividend rights and/or rights on liquidation, dissolution or winding up of the Company (in each case without regard to whether dividends accrue cumulatively or non-cumulatively).
As indicated in under "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K, the Company and the Rights Agent have executed the Rights Agreement Amendment, which amends Amended and Restated Rights Agreement, dated as of March 3, 2008. The Rights Agreement Amendment modifies certain rights of holders of the stock purchase rights issued under the Amended and Restated Rights Agreement, dated as of March 3, 2008, and registered pursuant to Section 12(g) of the Securities Exchange Act of 1934. The description of such modifications set forth under "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
The information concerning executive compensation set forth under "Item 1.01 Entry into a Material Definitive Agreement" is incorporated by reference into this Item 5.02.
Amendment to Articles of Incorporation
On December 17, 2008, the shareholders of the Company approved an amendment (the "Articles Amendment") to ARTICLE
FIFTH of the Company's articles of incorporation to authorize the issuance by the Company of up to 1,000,000 shares of preferred stock. The preferred stock may be issued by the Company's board of directors in one or more series, from time to time, with each such series to consist of such number of shares and to have such voting powers, designations, preferences, rights, qualifications, limitations and restrictions as determined by the board of directors.
The Articles Amendment was approved by the board of directors on October 21, 2008, subject to shareholder approval, and was effective upon approval by the Company's shareholders and the filing of the Articles Amendment with the Secretary of State of the Commonwealth of Pennsylvania on December 17, 2008. The full text of the Articles Amendment is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by this reference. The above summary is qualified in its entirety by reference to the full text of the Articles Amendment filed as Exhibit 3.1.
Filing of Certificate of Designation
On December 17, 2008, the Company filed a Statement with Respect to Shares (the "Certificate of Designations") with the Secretary of State of the Commonwealth of Pennsylvania for the purpose of amending its articles of incorporation to fix the designations, preferences, limitations and relative rights of the Series A Preferred Stock. The Series A Preferred Stock has a liquidation preference of $1,000 per share. The Certificate of Designations is attached hereto as Exhibit 3.2 and is incorporated by reference herein. The above summary is qualified in its entirety by reference to the full text of the Certificate of Designations filed as Exhibit 3.2.
On December 19, 2008, the Company issued a press release announcing that it had completed the sale to Treasury of 25,000 shares of the Company's Series A Preferred Stock and the Warrant for an aggregate purchase price of $25,000,000 in cash. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
(d) Exhibits:
3.1 Articles of Amendment to Articles of Incorporation of VIST Financial Corp., effective as of December 17, 2008.
3.2 Statement with Respect to Shares for the Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, of VIST Financial Corp.
4.1 Form of Certificate for Fixed Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, of VIST Financial Corp.
4.2 Warrant, dated December 19, 2008, to purchase 364,078 shares of common stock, par value $5.00 per share, of VIST Financial Corp.
4.3 Amendment to the Amended and Restated Rights Agreement, dated as of December 17, 2008, between VIST Financial Corp. and American Stock Transfer & Trust Company, as the rights agent.
10.1 Letter Agreement, dated December 19, 2008, between VIST Financial Corp. and the United States Department of the Treasury, with respect to the issuance and sale of the Series A Preferred Stock and the Warrant.
99.1 Press release, dated December 19, 2008, of VIST Financial Corp.
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