EXHIBIT 10.2
TEMECULA VALLEY BANCORP INC.
SUBSCRIPTION AGREEMENT
TO: Temecula Valley Bancorp Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I understand that Temecula Valley Bancorp Inc., a California
corporation (the "Company"), is offering up to 1,140,000 shares of common stock
(the "Offering") of the Company at $[19.00 and 21.31 for officers, directors,
employees and employee stock ownership plan (collectively, "insiders")] per
share ("Per Share Price") to a limited number of investors in order to raise
funds for general corporate purposes.
I hereby confirm my agreement (the "Agreement") with you as follows:
1. On the date hereof, I agree to purchase from the Company, and upon
acceptance of my subscription and in reliance on my representations, warranties
and covenants contained herein, the Company will issue and sell to me, such
shares of common stock in the Company as are set forth on the signature page
hereof or such lesser number of shares as the Company may allocate to me (the
"Shares") at the Per Share Price, for an aggregate amount set forth on such
signature page.
2. I shall purchase the Shares by delivering to the Company a certified
check or wire transfer in an amount equal to the number of Shares I am
purchasing multiplied by the Per Share Price of $[19.00 and $21.31 for
insiders].
3. I represent, warrant and agree as follows:
(a) I am an "accredited investor" as defined by Rule 501(a)
promulgated under the federal Securities Act of 1933, as amended (the
"Securities Act") as described in the Investor Questionnaire attached hereto and
incorporated herein by this reference.
(b) I have had an opportunity to ask questions of and receive
answers from representatives of the Company concerning the investment in the
Shares. I also understand that the Company will, upon my request, make available
to me a copy of any information regarding the Company and its proposed
operations that the Company possesses or can obtain without unreasonable
expense. I have reviewed the Private Placement Memorandum dated November 3, 2006
(including the "Risk Factors" section contained therein and the materials
attached thereto and incorporated by reference therein) and all other materials
and information I have requested or received in connection with my decision to
make this investment (collectively, the "Information"). I have such knowledge
and experience in financial and business matters that I am capable of evaluating
the merits and risks of the investment in the Shares. I acknowledge that I have
conducted my own due diligence with respect to the Company, the Shares and any
other matter which I believe to be material to my decision to invest in the
Company and further acknowledge that I am making my investment decision based on
this due diligence. No person or entity other than the Company or its authorized
representatives has offered the securities to me.
(c) I understand that the Shares to be issued pursuant to this
Agreement have not been passed on as to the fairness or recommended or endorsed
by any federal or state agency and their issuance will not be registered under
the Securities Act or the securities laws of any state, in reliance upon
exemptions from registration contained in the Securities Act and such laws. The
Company's reliance upon such exemptions is based in part upon my
representations, warranties and agreements contained in this Agreement.
(d) I am purchasing the Shares for my own account and not for
distribution or resale to others, and I agree that I will not sell or otherwise
transfer the Shares unless the Shares have been registered under the Securities
Act and applicable state securities laws, or, in the opinion of counsel
acceptable to the Company, an exemption therefrom is available. I do not
presently have any reason to anticipate any change in my circumstances or other
particular occasion or event which would cause me to sell the Securities. I have
no contract, undertaking, agreement, understanding or arrangement with any
person to sell, transfer or pledge to any person any part or all of the
Securities which the undersigned is acquiring, or any interest therein, and have
no present plans to enter into the same.
1
(e) I understand that the certificates representing the Shares
will contain a legend stating that their issuance has not been registered under
the Securities Act or any state securities laws and referring to the above
restrictions on transferability and sale. A notation will also be made in the
records of the Company or its transfer agent so that transfers of the Shares
will not be made without compliance with these restrictions.
(f) I acknowledge that an investment in the Company is speculative
and involves a high degree of risk, including the loss of my entire investment
in the Company.
4. I acknowledge that the Information is confidential, and I agree that
all such Information shall be kept in confidence by me; provided that this
obligation shall not apply to any such Information that (i) is part of the
public knowledge or literature and readily accessible as of the date hereof;
(ii) becomes part of the public knowledge or literature and readily accessible
(except as a result of a breach of this provision); or (iii) is received from a
third party (except a third party who discloses such Information in violation of
any confidentiality agreement). Further, this obligation does not prohibit my
discussion of such Information with my counsel, accountant or other financial
adviser who are provided with a copy of this Agreement and agree to be bound by
the terms hereof to the same extent as if they were parties to this Agreement,
solely for the purpose of assisting my analysis and assessment of such
Information and an investment in the Company. In any event, I will be
responsible for any breach of this Agreement by any of my representatives and
agree, at my sole expense, to take all reasonable measures (including but not
limited to court proceedings) to restrain my representatives from prohibited or
unauthorized disclosure or use of the Information.
5. I acknowledge that the Company and its officers, directors,
employees, agents, affiliates and advisors (and the placement agents in this
offering and their officers, directors, employees, agents affiliates and
advisors in connection with their activities in assisting with the placement of
the Shares) are relying on the truth and accuracy of the foregoing
representations and warranties in offering Shares for sale to me without having
first registered the offer and sale of the Shares under the Securities Act. I
also understand the meaning and legal consequences of the representations and
warranties in this Agreement, and I agree to indemnify and hold harmless the
Company and each of its officers, managers, directors, affiliates, agents,
advisors and employees and the placement agents and each of their respective
officers, managers, directors, affiliates, agents, advisors and employees, from
and against any and all loss, damage or liability, including costs and expenses
(including reasonable attorneys' fees), due to or arising out of a breach of any
such representations or warranties or any failure to fulfill any covenants
contained in this Agreement. All representations, warranties and covenants
contained in this Agreement and the indemnification contained in this Paragraph
5 shall survive the acceptance of this Agreement and the sale of the Shares. I
acknowledge that this subscription agreement will not be deemed to be accepted
until it is signed by the Company and returned to me. Notwithstanding the
foregoing, however, no representation, warranty, acknowledgement or agreement
made herein by the undersigned shall in any manner be deemed to constitute a
waiver of any rights granted to me under federal or state securities laws to the
extent any such rights may not be waived.
6. I further agree that, without the prior written consent of the Board
of Directors of the Company, until such time as any and all material non-public
information contained in the Information has been disclosed publicly or until
such time as the information contained in the Information is no longer
considered material, neither I nor any of my affiliates (as such term is defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended), acting
alone or as part of a group, will: (a) acquire, propose, or offer to acquire, or
agree to acquire, directly or indirectly, by purchase or otherwise, any
securities or direct or indirect rights to acquire any securities of the
Company, or (b) sell any securities of the Company.
7. This Agreement and the Registration Rights Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended or modified only by a writing executed by the party to
be bound thereby. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original but all of which shall constitute but one
and the same instrument. This Agreement may be executed and delivered by
facsimile transmission, which will constitute the legal delivery hereof. This
Agreement shall be governed by and construed in accordance with the laws of the
State of California without regard to choice of law principles.
8. Correspondence addressed to me should be sent to the address listed
below until such time as I shall notify the Company, in writing, of a different
address to which such correspondence and notices are to be sent.
9. I acknowledge that this Agreement is a subscription to purchase
Shares in the aggregate amount set forth below.
10. THE FOLLOWING LANGUAGE WAS ADDED AS PARAGRAPH 10 FOR THE
SUBCRIPTION AGREEMENTS WITH UBS ▇'▇▇▇▇▇▇ LLC FBO ▇'▇▇▇▇▇▇ GLOBAL CONVERTIBLE
ARBITRAGE MASTER LIMITED, UBS ▇'▇▇▇▇▇▇ LLC FBO ▇'▇▇▇▇▇▇ GLOBAL CONVERTIBLE
ARBITRAGE II MASTER LIMITED AND UBS ▇'▇▇▇▇▇▇ LLC FBO ▇'▇▇▇▇▇▇ PIPES CORPORATE
STRATEGIES MASTER LIMITED: I am subscribing to purchase Shares based upon the
understanding that:
(a) as soon as practicable after the closing of the sale of the
Shares, the Company will issue, or cause to be issued, a press release
disclosing the transactions contemplated in this Agreement; and the Company will
file, or cause to be filed, with the Securities and Exchange Commission, a Form
8-K on or before 8.30 am, New York City Time, on the second business day
following the closing of the sale of the Shares, describing the terms of the
transaction contemplated by the Offering in the form required by the Securities
Exchange Act of 1934, as amended, and attaching the material transaction
documents as exhibits to such filing; and
(b) upon registration of the Shares for resale, will take the
steps necessary to cause the removal of the legend placed upon the Shares in
connection with the sale of the Shares under the terms of the Offering.
10. THE FOLLOWING LANGUAGE WAS ADDED AS PARAGRAPH 10 FOR THE
SUBCRIPTION AGREEMENTS WITH BAY POND PARTNERS, L.P. AND BAY POND INVESTORS
(BERMUDA) L.P.: As soon as practicable after the closing of the sale of the
Shares, the Company will issue, or cause to be issued, a press release
disclosing the transactions contemplated in this Agreement; and the Company will
file, or cause to be filed, with the Securities and Exchange Commission, a Form
8-K on or before 8.30 am, New York City Time, on the second business day
following the closing of the sale of the Shares, describing the terms of the
transaction contemplated by the Offering in the form required by the Securities
Exchange Act of 1934, as amended, and attaching the material transaction
documents as exhibits to such filing.
[ Signatures on following page ]
2
SIGNATURE PAGE TO
THE SUBSCRIPTION AGREEMENT WITH
TEMECULA VALLEY BANCORP INC.
IN WITNESS WHEREOF, I have executed this Subscription Agreement as of
the date set forth below:
Name: [SEE FOLLOWING PAGE FOR A LIST OF INVESTORS
AND NUMBER OF SHARES PURCHASED]
Please indicate form of ownership the undersigned desires for the Shares:
|_| Individual,
|_| Joint Tenants with Right of Survivorship (1),
|_| Tenants in Common (2),
|_| Qualified Trust,
|_| Custodian for ___________________________________________________________
State of Residence:
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Address:______________________________________________________________________
Phone Number:_________________________________________________________________
Email Address:________________________________________________________________
Social Security Number:_______________________________________________________
Number of Shares:_____________________________________________________________
Aggregate Purchase Price:_____________________________________________________
Date:_________________________________________________________________________
By: __________________________________________________________________________
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Signature
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Print name of signatory
Accepted:
TEMECULA VALLEY BANCORP INC.
By:___________________________________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
Date: November , 2006
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Number of Shares: See list below.
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(1) When stock is held as Joint Tenants with right of Survivorship, upon the
death of one owner, ownership of the stock will pass automatically to the
surviving owner(s).
(2) When stock is held as Tenants in Common, upon the death of one owner,
ownership of the stock will be held by the surviving owner(s) and by the
heirs of the deceased owner.
3
Temecula Directors, Officers, Employees and ESOP: # of Shares
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,692
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 7,038
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,173
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. 4,692
▇▇▇▇▇▇ ▇. ▇▇▇▇ 2,815
Jordan M. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,815
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 938
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 4,692
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 2,346
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,346
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,880
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,692
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇ Family Trust 2,290
▇▇▇▇▇▇ ▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,173
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,000
▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,173
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,346
Temecula Valley Bank Employee Stock Ownership Plan 7,038
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Subtotal 64,139
Other Investors:
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Acadia Master Fund I, Ltd 100,000
ActivFinancial Fund I, LP 2,000
Bank of Stockton 150,000
▇▇▇▇ ▇▇▇▇▇▇▇ 10,000
Bay Pond Investors (Bermuda) L.P. 100,000
Bay Pond Partners, L.P. 300,000
Berlin Capital Growth, L.P. 12,000
Berlin Income, L.P. 8,000
▇▇▇▇▇ ▇. ▇▇▇▇ 2,500
▇▇▇▇▇▇▇ Offshore Fund, Ltd. 13,969
▇▇▇▇▇▇▇ Partners LP 15,738
▇▇▇▇▇▇▇ Partners II, LP 31,293
Center Bancorp 15,000
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 750
Drake Associates L.P. 25,000
Eastern Bank Corp. 15,000
▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000
FrontPoint Financial Horizons Fund, L.P. 105,000
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,500
Investors Group Corporate Class Inc. 17,300
Investors Group Trust Co. Ltd. 132,700
▇▇▇▇▇▇ ▇▇▇▇▇ 2,000
Norguard Insurance 15,000
Right Wall Capital Fund, LP 27,000
River Oaks Financial Fund LP 55,000
Stieven Financial Investors, L.P. 88,000
Stieven Financial Offshore Investors, Ltd. 12,000
Revocable Trust of ▇. ▇▇▇▇▇▇▇ 2,680
UBS ▇'▇▇▇▇▇▇ LLC fbo ▇'▇▇▇▇▇▇ Global Convertible Arbitrage Master 27,358
UBS ▇'▇▇▇▇▇▇ LLC fbo ▇'▇▇▇▇▇▇ Global Convertible Arbitrage II Master 2,905
UBS ▇'▇▇▇▇▇▇ LLC fbo ▇'▇▇▇▇▇▇ PIPES Corporate Strategies Master 44,737
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TOTAL 1,400,569
