Unassociated Document
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): December 5, 2008
SUPERIOR
BANCORP
(Exact
Name of Registrant as Specified in Charter)
Delaware
State or
Other
Jurisdiction
of
Incorporation
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0-25033
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63-1201350
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(Commission
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(IRS
Employer
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File
Number)
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Identification
No.)
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35203
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(Address
of Principal Executive Offices)
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Zip
Code)
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(205)
327-1400
(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:
¨ 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
communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section 3 – Securities and
Trading Markets
Item 3.02. Unregistered Sales of
Equity Securities
On
December 5, 2008, as part of the Troubled Asset Relief Program (“TARP”) Capital
Purchase Program, Superior Bancorp (the “Company”) issued and sold, and the
United States Department of the Treasury (the “Treasury”) purchased,
(i) 69,000 shares (the “Preferred Shares”) of the Company’s Fixed Rate
Cumulative Perpetual Preferred Stock, Series A, having a liquidation preference
of $1,000 per share, and (ii) a ten-year warrant (the “Warrant”) to
purchase up to 1,923,792 shares of the Company’s voting common stock, par value
$0.001 per share (“Common Stock”), at an exercise price of $5.38 per share, for
an aggregate purchase price of $69,000,000 in cash. The issuance and sale of
these securities was a private placement exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933.
Cumulative
dividends on the Preferred Shares will accrue on the liquidation preference at a
rate of 5% per annum for the first five years, and at a rate of 9% per
annum thereafter, but will be paid only if, as and when declared by the
Company’s Board of Directors. The Preferred Shares have no maturity date and
rank senior to the Common Stock (and pari passu with the
Company’s other authorized series of preferred stock, of which no shares are
currently outstanding) with respect to the payment of dividends and
distributions and amounts payable upon liquidation, dissolution and winding up
of the Company. Subject to the approval of the Office of Thrift Supervision, the
Preferred Shares are redeemable at the option of the Company at 100% of their
liquidation preference, provided that the Preferred Shares may be redeemed prior
to the first dividend payment date falling after the third anniversary of the
Closing Date (December 5, 2011) only if (i) the Company has raised
aggregate gross proceeds in one or more Qualified Equity Offerings (as defined
in the letter agreement, dated December 5, 2008 between the Company and the
Treasury (including the Securities Purchase Agreement—Standard Terms
incorporated by reference therein) (the “Purchase Agreement”) and set forth
below) in excess of $17,250,000 and (ii) the aggregate redemption price
does not exceed the aggregate net proceeds from such Qualified Equity Offerings.
The
Treasury may not transfer a portion or portions of the Warrant with respect to,
and/or exercise the Warrant for more than one-half of, the 1,923,792 shares of
Common Stock issuable upon exercise of the Warrant, in the aggregate, until the
earlier of (i) the date on which the Company has received aggregate gross
proceeds of not less than $69,000,000 from one or more Qualified Equity
Offerings (as defined in the Purchase Agreement and set forth below) and
(ii) December 31, 2009. In the event the Company completes one or more
Qualified Equity Offerings (as defined in the Purchase Agreement and set forth
below) on or prior to December 31, 2009 that result in the Company receiving
aggregate gross proceeds of not less than $69,000,000, the number of the shares
of Common Stock underlying the portion of the Warrant then held by the Treasury
will be reduced by one-half of the shares of Common Stock originally covered by
the Warrant. For the purposes of the foregoing, “Qualified Equity Offering” is
defined as the sale and issuance for cash by the Company to persons other than
the Company or any Company subsidiary after the Closing Date of shares of
perpetual Preferred Stock, Common Stock or any combination of such stock, that,
in each case, qualify as and may be included in Tier I capital of the Company at
the time of issuance under the applicable risk-based capital guidelines of the
Company’s federal banking agency (other than any such sales and issuances made
pursuant to agreements or arrangements entered into, or pursuant to financing
plans which were publicly announced, on or prior to October 13, 2008).
The
Purchase Agreement pursuant to which the Preferred Shares and the Warrant were
sold, contains limitations on the payment of dividends on the Common Stock and
on the Company’s ability to repurchase its Common Stock, and subjects the
Company to certain of the executive compensation limitations included in the
Emergency Economic Stabilization Act of 2008 (the “EESA”). As a condition to the
closing of the transaction, each of the Company’s Senior Executive Officers (as
defined in the Purchase Agreement) (the “Senior Executive Officers”),
(i) executed a waiver (the “Waiver”) voluntarily waiving any claim against
the Treasury or the Company for any changes to such Senior Executive Officer’s
compensation or benefits that are required to comply with the regulation issued
by the Treasury under the TARP Capital Purchase Program as published in the
Federal Register on October 20, 2008 and acknowledging that the regulation
may require modification of the compensation, bonus, incentive and other benefit
plans, arrangements and policies and agreements (including so-called “golden
parachute” agreements) (collectively, “Benefit Plans”) as they relate to the
period the Treasury holds any equity or debt securities of the Company acquired
through the TARP Capital Purchase Program; and (ii) entered into a letter
agreement (the “Letter Agreement”) with the Company amending the Benefit Plans
with respect to such Senior Executive Officer as may be necessary, during the
period that the Treasury owns any debt or equity securities of the Company
acquired pursuant to the Purchase Agreement or the Warrant, as necessary to
comply with Section 111(b) of the EESA.
Copies of
the Purchase Agreement, the Warrant, the form of Waiver executed by the Senior
Executive Officers and the form of Letter Agreement executed by the Senior
Executive Officers are included as exhibits to this Report on Form 8-K and are
incorporated by reference into these Items 3.02, 3.03, 5.02 and 5.03. The
foregoing summary of certain provisions of these documents is qualified in its
entirety by reference thereto.
Item 3.03. Material Modification to
Rights of Security Holders.
The
information set forth under “Item 3.02 Unregistered Sales of Equity Securities”
is incorporated by reference into this Item 3.03.
Section 5 – Corporate Governance and
Management
Item 5.02. Departure of Directors or
Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers
The
information set forth under “Item 3.02 Unregistered Sales of Equity Securities”
is incorporated by reference into this Item 5.02.
Item 5.03. Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year
On
November 26, 2008, the Company filed with the Secretary of State of the State of
Delaware a Certificate of Designations to its Restated Certificate of
Incorporation establishing the terms of the Preferred Shares. A copy of the
Certificate of Designations was included as Exhibit 3 to a Report on Form 8-K
filed with the Commission on December 3, 2008.
Section 7 — Regulation
FD
Item 7.01. Regulation FD
Disclosure.
On
December 8, 2008, the Company issued a press release announcing that it had
completed the sale of Preferred Shares and Warrants pursuant to the TARP Capital
Purchase Program The text of the press release is attached to this
report as Exhibit 99.
This
information is furnished pursuant to Item 7.01 of Form 8-K and shall not be
deemed to be “filed” for the purposes of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that Section, unless we
specifically incorporate it by reference in a document filed under the
Securities Act of 1933 or the Securities Exchange Act of 1934. By filing this
report on Form 8-K and furnishing this information, we make no admission as to
the materiality of any information in this report that is required to be
disclosed solely by reason of Regulation FD.
Section 9 — Financial Statements and
Exhibits
Item 9.01. Financial Statements and
Exhibits.
(d)
Exhibits
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Exhibit
No.
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Description
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3
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Warrant,
dated December 5, 2008, to purchase up to 1,923,792 shares of common stock
of Superior Bancorp
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10.1
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Letter
Agreement, dated December 5, 2008, including Securities Purchase Agreement
– Standard Terms incorporated by reference therein, between the Company
and the United States Department of the Treasury
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10.2
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Form
of Waiver, executed as of December 5, 2008, by each of the Senior
Executive Officers of Superior Bancorp
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10.3
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Form
of Letter Agreement, executed as of December 5, 2008, by each of the
Senior Executive Officers of Superior Bancorp
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99
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Press
Release of Superior Bancorp dated December 8,
2008 |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this Current Report on Form 8-K to be signed on its behalf by the
undersigned hereunto duly authorized.
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SUPERIOR
BANCORP
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Date:
December 8, 2008
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By:
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/s/
C. Stanley Bailey
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C.
Stanley Bailey
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Chairman
and Chief Executive Officer
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INDEX TO
EXHIBITS
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Exhibit
No.
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Description
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3
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Warrant,
dated December 5, 2008, to purchase up to 1,923,792 shares of common stock
of Superior Bancorp
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10.1
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Letter
Agreement, dated December 5, 2008, including Securities Purchase Agreement
– Standard Terms incorporated by reference therein, between the Company
and the United States Department of the Treasury
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10.2
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Form
of Waiver, executed as of December 5, 2008, by each of the Senior
Executive Officers of Superior Bancorp
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10.3
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Form
of Letter Agreement, executed as of December 5, 2008, by each of the
Senior Executive Officers of Superior Bancorp
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99
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Press
Release of Superior Bancorp dated December 8,
2008 |