Exhibit 10.1
SUBSCRIPTION AGREEMENT
First Ipswich Bancorp
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Re: Subscription for Shares of Common Stock of First Ipswich Bancorp
Ladies and Gentlemen:
I. Offering. The undersigned understands that First Ipswich Bancorp, a
Massachusetts chartered holding company headquartered in Ipswich, Massachusetts
(the "Company"), is offering to sell until March 31, 2007 an aggregate of up to
250,000 shares of its common stock, par value $1.00 per share ("Common Stock"),
at $8.00 per share, to a limited number of investors in accordance with the
terms and conditions described herein (the "Offering"). The minimum subscription
is for 6,250 shares of Common Stock (125 shares for Directors and Executive
Officers of the Company) unless the Company agrees to accept a lesser
subscription. As additional consideration for the undersigned's subscription for
shares of Common Stock hereunder (assuming the same is accepted by the Company),
the Company will issue to the undersigned for no additional consideration, a
Warrant in the form attached hereto as Exhibit A (the "Warrant") to purchase a
number of shares of Common Stock equal to 20% of the shares subscribed
hereunder. The Warrant will be exercisable from the date of issuance for three
years at a price equal to $8.00 per share, subject to the terms and conditions
described therein.
II. Use of Proceeds. The undersigned understands that The First National Bank of
Ipswich, the Company's wholly-owned subsidiary and a national bank (the "Bank"),
is subject to a Formal Agreement with The Office of the Comptroller of the
Currency, under which the Bank is required to achieve certain capital ratios by
December 31, 2006. The undersigned further understands that the proceeds from
this Offering will be used to help the Bank meet the capital ratios required by
the Formal Agreement, to cover costs and expenses associated with this Offering
and for general corporate purposes.
III. Purchase and Sale. Subject to the terms and conditions described herein,
the undersigned ("Purchaser") hereby irrevocably subscribes for and agrees to
purchase from the Company ________ shares ("Shares") of Common Stock at a
purchase price of $8.00 per Share for an aggregate purchase price of $_________.
This subscription may be rejected, in whole or in part, by the Company in its
sole discretion. Two executed copies of this Subscription Agreement must be
delivered to the Company no later than March 31, 2007.
The Company presently intends to accept, in whole or in part, Subscription
Agreements delivered on or before January 26, 2007. The Company reserves the
right to terminate the Offering at any time, including, without limitation,
after January 26, 2007.
IV. Amount and Method of Payment. Purchaser hereby delivers to the Company (or
if the Subscription Agreement is delivered prior to January 26, 2007, agrees to
deliver to the Company on or before January 26, 2007) a check or money order
made payable to the order of "First Ipswich Bancorp" in the amount of the
aggregate purchase price indicated above (to be held in a deposit account at the
Bank in escrow). If a subscription is rejected in whole or in part or if the
Offering is terminated for any reason, Purchaser's subscription shall be void
and all funds received from Purchaser shall be returned as soon as practicable
to Purchaser without any interest thereon, and without charge or deduction.
V. Representations and Warranties of Purchaser. In order to induce the Company
to accept this subscription, Purchaser hereby represents and warrants to, and
covenants with, the Company as follows:
5.1 The undersigned understands that the Shares, the Warrant, and the shares of
Common Stock issuable upon exercise of the Warrant (collectively, the
"Securities") have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or the securities laws of any state in the
United States, by reason of their contemplated issuance in transactions exempt
from the requirements of the Securities Act, and that the reliance on such
exemption from registration is predicated in part on these representations and
warranties of Purchaser. Purchaser acknowledges that a restrictive legend
consistent with the foregoing has been or will be placed on the certificates
evidencing the Securities. Purchaser understands that neither the Securities and
Exchange Commission ("SEC") nor any state securities commission has approved the
Securities or passed upon or endorsed the merits of the investment or reviewed
or confirmed the accuracy or determined the adequacy of any information
furnished to Purchaser in connection with this Offering;
5.2 Purchaser is acquiring the Securities solely for the account of Purchaser,
for investment purposes only, and not with a view towards the resale or
distribution thereof. Purchaser further agrees not to transfer the Securities in
violation of the Securities Act, or any applicable state securities law, and
that no one other than Purchaser has any beneficial interest in the Securities;
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5.3 Purchaser understands that trading of the Common Stock on the OTC Bulletin
Board is limited and sporadic. Purchaser understands that the Securities are
"restricted securities", as said term is defined in Rule 144 promulgated under
the Securities Act ("Rule 144"). Purchaser understands that Rule 144 requires,
among other conditions, a one-year holding period prior to the resale (in
limited amounts) of securities acquired in a non-public offering without having
to satisfy the registration requirements under the Securities Act. Purchaser
understands that the Company makes no representation or warranty regarding its
fulfillment in the future of any reporting requirements under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or its dissemination to
the public of any current financial or other information concerning the Company,
as is required by the Rule as one of the conditions of its availability.
Purchaser understands and hereby acknowledges that the Company is under no
obligation to register the Securities acquired hereunder under the Securities
Act;
5.4 Purchaser agrees that it will not sell or otherwise dispose of any of the
Securities unless such sale or other disposition (i) has been registered under
the Securities Act or, in the opinion of counsel, is exempt from registration
under the Securities Act and (ii) has been registered or qualified or, in the
opinion of such counsel, is exempt from registration or qualification under the
applicable state securities laws. Purchaser may not sell, transfer, or otherwise
dispose of the Securities, except in compliance with the applicable rules of the
SEC and applicable state securities authorities;
5.5 Purchaser is an executive officer and/or director of the Company or is
otherwise an "accredited investor", as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act, as indicated by its responses
to the Investor Questionnaire attached hereto as Annex I (the "Investor
Questionnaire") and is sufficiently knowledgeable to understand the risks
involved in purchasing the Securities, and Purchaser, or Purchaser through its
representative, or if Purchaser is a corporation, partnership, limited liability
company, trust or other entity, Purchaser, by and through its officers,
directors, members, trustees, employees or other advisors, (I) is experienced in
evaluating an investment in the Company, (II) has determined that an investment
in the Company is a suitable investment for Purchaser and (III) has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of Purchaser's investment in the Company.
Purchaser has the financial ability to bear the economic risks of its entire
investment for an indefinite period, would be able to sustain a complete loss of
its investment, and Purchaser has no need for liquidity with respect to its
investment in the Company. If Purchaser is a natural person, Purchaser has
adequate means for providing for current needs and personal contingencies;
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5.6 Purchaser, and if applicable, Purchaser's representative, has received and
carefully reviewed the following documents constituting the periodic and current
reports filed by the Company with the SEC in the past twelve months:
A. ANNUAL REPORT ON FORM 10-KSB FOR THE FISCAL YEAR ENDED DECEMBER 31, 2005;
B. QUARTERLY REPORTS ON FORM 10-QSB (AND 10-QSB/A) FOR THE FISCAL QUARTERS
ENDED MARCH 31, JUNE 30 AND SEPTEMBER 30, 2006 (AS AMENDED); AND
C. CURRENT REPORTS ON FORM 8-K FILED ON MARCH 23, MARCH 31, APRIL 7, MAY 12,
JUNE 7, JUNE 29, JULY 25, AUGUST 15, AUGUST 24, OCTOBER 31, NOVEMBER 2,
NOVEMBER 14, DECEMBER 18 AND DECEMBER 27, 2006.
Purchaser acknowledges and agrees that the foregoing shall be supplemented by
subsequent periodic and current reports filed by the Company with the SEC
pursuant to the Exchange Act. The foregoing enumerated periodic and current
reports and the subsequent periodic and current reports filed by the Company are
hereinafter collectively referred to as the "Company Reports";
5.7 Purchaser, and if applicable, Purchaser's representative, has had a
reasonable opportunity to ask questions of and receive answers from the Company
concerning the Company and the Securities being offered hereby and to verify the
accuracy of any representation or information set forth in this Agreement and
the Warrant (together, the "Subscription Documents") and the Company Reports,
and all such questions, if any, have been answered to the full satisfaction of
Purchaser;
5.8 Purchaser, and if applicable, Purchaser's representative, has received from
the Company, and has reviewed, such information which Purchaser considers
necessary or appropriate to evaluate the risks and merits of an investment in
the Securities, including, without limitation, the Subscription Documents and
the Company Reports and, in particular, Purchaser acknowledges that, as shown in
the financial statements included in the Company's quarterly report on Form
10-QSB/A for the nine month period ended September 30, 2006, the Company has
incurred substantial losses in the past nine months. Purchaser further
acknowledges that as described in the Form 10-QSB/A for the nine month period
ended September 30, 2006, there are a number of factors which may adversely
affect earnings in the near future, including the costs of compliance with the
Formal Agreement;
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5.9 Except as set forth in the Subscription Documents, no representations or
warranties have been made to Purchaser, and if applicable, Purchaser's
representative, by the Company or any agent, employee or affiliate of the
Company. Purchaser has relied solely on the representations, warranties,
covenants and agreements of the Company in the Subscription Documents and on
Purchaser's examination and independent investigation in making its decision to
acquire the Securities;
5.10 Purchaser understands that the Securities are being offered and sold
expressly conditioned upon the satisfaction of specific exemptions from the
registration requirements of the federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of Purchaser set
forth herein and in the Investor Questionnaire in order to determine the
applicability of such exemptions and the suitability of Purchaser to acquire
such Securities;
5.11 Purchaser has full power and authority to execute and deliver this
Subscription Agreement and to perform Purchaser's obligations hereunder, and
this Subscription Agreement is a legally binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms; and
5.12 Purchaser has not incurred any obligation for any finder's, or broker's
agent's fees or commission in connection with the transactions contemplated
hereby.
5.13 Purchaser did not learn of the Offering directly or indirectly, through any
general solicitation or advertising, including, but not limited to, learning of
the Offering as a result of viewing any press releases or similar types of
publicly-available information which directly or indirectly resulted in
Purchaser subscribing for the Shares in the Offering.
VI. Information Furnished by the Undersigned. All the information which the
undersigned has furnished to the Company, or which is set forth herein and in
the Investor Questionnaire, is correct and complete as of the date of this
Subscription Agreement, and if there should be any material change in such
information, Purchaser will immediately furnish such revised or corrected
information to the Company.
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VII. Restrictive Legend and Stop-Transfer Instructions.
7.1 Purchaser shall comply with all of the following restrictions prior to
reselling any of the Securities: (a) Until the Securities have been registered
with the SEC, Purchaser shall notify the Company about any proposed resale which
notice must be received by the Company at least twenty (20) business days prior
to such resale; (b) All offers or sales of such Securities by Purchaser may only
be made pursuant to an effective registration statement filed under the
Securities Act or pursuant to an exemption from registration under the
Securities Act and in compliance with all applicable state securities laws; and
(c) If requested by the Company, Purchaser shall provide a satisfactory opinion
from legal counsel that Purchaser's resale complies with this Section 7.1.
7.2 Any certificate or certificates representing the Securities shall bear an
appropriate legend evidencing the preceding restrictions in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO, OR (ii) IN THE OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY, REGISTRATION UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS
IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
VIII. Indemnification. The undersigned Purchaser agrees to indemnify and hold
harmless the Company and its employees, agents, attorneys and affiliates from
and against all damages, losses, costs and expenses (including attorneys' fees)
which they may incur by reason for the failure of the undersigned to fulfill any
of the terms or conditions of this Agreement, or by reason of any breach of any
of the representations and warranties made by the undersigned herein or in any
document provided by the undersigned Purchaser to the Company.
IX. Confidentiality. Purchaser acknowledges and agrees that all information
relating to the Company and this offering shall be kept confidential by
Purchaser, except as otherwise required by law or, in the case of executive
officers of the Company, in fulfillment of their obligations as employees of the
Company, or made public other than by or through the undersigned.
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X. Nontransferability. Neither this Subscription Agreement nor any of the rights
of Purchaser hereunder may be transferred or assigned by Purchaser and any
attempted assignment shall be null and void.
XI. Amendment; Entire Agreement; Governing Law. This Subscription Agreement (i)
may only be modified by a written instrument executed by Purchaser and the
Company, (ii) sets forth the entire agreement of Purchaser and the Company with
respect to the subject matter hereof and supersedes all prior agreements and
understandings between or among the parties with respect to the subject matter
hereof, (iii) shall be governed by the internal laws of the Commonwealth of
Massachusetts, without giving effect to the conflicts of law principles thereof,
and (iv) shall inure to the benefit of, and be binding upon, the Company and
Purchaser and their respective successors and permitted assigns.
XII. Notices. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by reputable overnight courier, facsimile
(with receipt of confirmation) or registered or certified mail, return receipt
requested, addressed to the Company, at First Ipswich Bancorp, 00 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: President, facsimile (000) 000-0000 and
to the Purchaser at the address indicated on the signature page hereof. Notices
shall be deemed to have been given on the date of mailing or fax, except notices
of change of address, which shall be deemed to have been given when received.
XIII. Pronouns; Counterparts. Unless the context otherwise requires, all
personal pronouns used in this Subscription Agreement, whether in the masculine,
feminine or neuter gender, shall include all other genders. This Subscription
Agreement may be executed in counterparts and by facsimile and each of such
counterparts shall constitute an original, and all of which together shall
constitute one and the same document.
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IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement
under seal as of December __, 2006.
Number of Shares: __________________________________________
Aggregate Purchase Price of Shares: $__________________________
Please indicate the form of ownership the undersigned desires for the Shares:
[_] Individual
[_] Joint Tenants with Right of Survivorship (1)
[_] Tenants in Common (2)
[_] Retirement Account
[_] Corporation
[_] Trust
[_] Partnership
[_] Limited Liability Company
[_] Custodian for _________________________________________
Purchaser (please print): _________________________________
___________________________________________________________
Signature
Please print name and title of signatory, if applicable:
___________________________________________________________
Address: __________________________________________________
__________________________________________________
__________________________________________________
Facsimile No: _____________________________________________
E-mail: ___________________________________________________
(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.
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ANNEX 1
INVESTOR QUESTIONNAIRE
Instructions: Check all boxes below which correctly describe you:
|_| You are: (i) a bank, as defined in Section 3(a)(2) of the Securities Act of
1933, as amended (the "Securities Act"); (ii) a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in an individual or fiduciary capacity; (iii) a broker or dealer
registered pursuant to Section 15 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (iv) an insurance company as defined in Section
2(a)(13) of the Securities Act; (v) an investment company registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"); (vi)
a business development company as defined in Section 2(a)(48) of the Investment
Company Act; (vii) a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301 (c) or (d) of the Small Business
Investment Act of 1958, as amended; (viii) a plan established and maintained by
a state, its political subdivisions, or an agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees and you have
total assets in excess of $5,000,000; or (ix) an employee benefit plan within
the meaning of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and: (1) the decision that you shall subscribe for and purchase shares
of common stock, par value $1.00 per share, of First Ipswich Bancorp (the
"Common Stock") is made by a plan fiduciary, as defined in Section 3(21) of
ERISA, which is either a bank, savings and loan association, insurance company,
or registered investment adviser; (2) you have total assets in excess of
$5,000,000 and the decision that you shall subscribe for and purchase Common
Stock is made solely by persons or entities that are accredited investors, as
defined in Rule 501 of Regulation D promulgated under the Securities Act
("Regulation D"); or (3) you are a self-directed plan and the decision that you
shall subscribe for and purchase Common Stock is made solely by persons or
entities that are accredited investors.
|_| You are a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940, as amended.
|_| You are an organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"), a corporation, Massachusetts or
similar business trust or a partnership, in each case not formed for the
specific purpose of making an investment in Common Stock and with total assets
in excess of $5,000,000.
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|_| You are a director or executive officer of First Ipswich Bancorp
|_| You are a natural person whose individual net worth, or joint net worth with
your spouse, exceeds $1,000,000 at the time of your subscription for and
purchase of Common Stock.
|_| You are a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with your spouse in excess
of $300,000 in each of the two most recent years, and who has a reasonable
expectation of reaching the same income level in the current year.
|_| You are a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring Common Stock, whose subscription for and
purchase of Common Stock is directed by a sophisticated person as described in
Rule 506(b)(2)(ii) of Regulation D.
|_| You are an entity in which all of the equity owners are persons or entities
described in one of the preceding paragraphs.
The undersigned hereby represents and warrants to the Company that all of
its answers to this Investor Questionnaire are true and correct as of the date
of its execution of the Subscription Agreement for shares of common stock, par
value $1.00 per share, of First Ipswich Bancorp
Purchaser (please print): _____________________________________
By: ___________________________________________________________
Signature
Please print name and title of signatory, if applicable:
_______________________________________________________________
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