p-8k112008.htm
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: November 19,
2008
First
PacTrust Bancorp, Inc.
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(Exact
name of registrant as specified in its
charter)
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Maryland
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000-49806
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04-3639825
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number
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I.R.S.
Employer
Identification
No.)
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610
Bay Boulevard, Chula Vista, California
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91910
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (619) 691-1519
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
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a
Material Definitive Agreement
On November 21, 2008, as part of the
Troubled Asset Relief Program (“TARP”) Capital Purchase Program, First PacTrust
Bancorp, Inc., the parent company of Pacific Trust Bank (“Company”) entered into
a Letter Agreement and Securities Purchase Agreement (collectively, the
“Purchase Agreement”) with the United States Department of the Treasury
(“Treasury”), pursuant to which the Company (i) sold 19,300 shares of the
Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the “Series
A Preferred Stock”) for a purchase price of $19.3 million in cash and (ii)
issued a warrant (the “Warrant”) to purchase 280,795 shares of the Company’s
common stock, par value $0.01 per share (the “Common Stock”), for a per share
price of $10.31 per share. 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 be entitled to 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, with
regulatory approval. 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”) for
at least $4,825,000. The restrictions on redemption are set forth in
the Articles Supplementary to the Company’s Charter (the “Amended Articles”)
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 $10.31
per share of the Common Stock. The Warrant is attached as Exhibit 4.2
hereto and is incorporated herein by reference. Treasury has agreed
not to exercise voting power with respect to any shares of Common Stock issued
upon exercise of the Warrant that it holds.
The
Company has agreed to register the Series A Preferred Stock, the Warrant and the
shares of Common Stock underlying the Warrant (the “Warrant Shares”), as soon as
practicable after the date of the issuance of the Series A Preferred Stock and
the Warrant. Neither the Series A Preferred Stock, the Warrant nor
the Warrant Shares 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 or the Warrant, as applicable, prior to the earlier of the
redemption of 100% of the shares of Series A Preferred Stock and December 31,
2009.
The
Purchase Agreement also subjects the Company and its senior executives to
executive compensation limitations included in the Emergency Economic
Stabilization Act of 2008 (the “EESA”) and related regulations of the
Treasury. In this connection, the six named executive officers in our
proxy statement for our 2008 annual meeting entered into a Compensation
Modification Agreement with the Company acknowledging that the EESA executive
compensation limits and related Treasury regulations 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 executed a waiver voluntarily waiving any claim against the
Treasury or the Company for any changes to such executive officer’s compensation
or benefits that are required in order 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.
Item 3.02 Unregistered Sales
of Equity Securities.
The
information set forth under “Item 1.01 Entry into a Material Definitive
Agreement” is incorporated by reference into this Item 3.02. The
issuance and sale of the Series A Preferred Stock and Warrant was exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933, as
amended. The Company has not engaged in a general solicitation or
advertising with regard to the issuance and sale of such securities and has not
offered securities to the public in connection with this issuance and
sale.
Item 3.03 Material
Modification to Rights of Security Holders.
Pursuant
to the terms of the Purchase Agreement, 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 a restriction
against increasing dividends from the last quarterly cash dividend per share
($0.185) declared on the Common Stock prior to November 21, 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, (b) the date on which the Series A
Preferred Stock has been redeemed in whole; and (c) the date 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 Amended Articles, 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 Amended
Articles 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).
Item 5.02 Departure of
Directors or Certain Officers; Election of; Appointment of Certain Officers;
Compensation Arrangements of Certain Officers.
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.
Item 5.03 Amendment to
Articles of Incorporation or Bylaws; Change in Fiscal Year
On
November 19, 2008, the Company filed Amended Articles with the State of Maryland
for the purpose of amending its Charter 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 Articles of Amendment are attached hereto as Exhibit 3.1
and are incorporated by reference herein.
Item 8.01
Other Information.
On
November 21, 2008, the Company issued a press release announcing the sale of
$19.3 million of Series A Preferred Stock to Treasury pursuant to the Purchase
Agreement and the completion of its existing stock buyback plan. The
press release is furnished as Exhibit 99.1 and is incorporated by reference
herein.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits
The
following exhibits are filed herewith:
Exhibit
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No.
Description of Exhibit
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3.1
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Articles
Supplementary for the Series A Preferred Stock
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4.1
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Form
of Certificate for the Series A Preferred Stock
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4.
2
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Warrant
for Purchase of Shares of Common Stock
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10.1
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Letter
Agreement, including Schedule A, and Securities Purchase Agreement, dated
November 21, 2008, between First PacTrust Bancorp, Inc. and United States
Department of the Treasury, with respect to the issuance and sale of the
Series A Preferred Stock and the Warrant
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10.2
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Form
of Compensation Modification Agreement and Waiver, executed by each of
Hans R. Ganz (President and Chief Executive Officer), James P. Sheehy
(Executive Vice President, Secretary and Treasurer), Melanie M. Stewart
(Executive Vice President, Lending), Regan J. Lauer (Senior Vice President
– Controller) and Rachel M. Carillo (Senior Vice – Branch
Operations)
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99.1
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November
21, 2008 Press Release
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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.
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FIRST
PACTRUST BANCORP, INC.
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Date: November
21, 2008
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By:
/s/ James P.
Sheehy
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James
P. Sheehy
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Executive
Vice President,
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Secretary
and Treasurer
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