UNITED STATES DEPARTMENT OF THE TREASURY 1500 PENNSYLVANIA AVENUE, NW
Exhibit 10.1
UNITED STATES DEPARTMENT OF THE TREASURY
1500 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20220
Dear Ladies and Gentlemen:
The company set forth on the signature page hereto (the Company) intends to issue in a private placement the number of shares of a series of its preferred stock set forth on Schedule A hereto (the Preferred Shares) and a warrant to purchase the number of shares of its common stock set forth on Schedule A hereto (the Warrant and, together with the Preferred Shares, the Purchased Securities) and the United States Department of the Treasury (the Investor) intends to purchase from the Company the Purchased Securities.
The purpose of this letter agreement is to confirm the terms and conditions of the purchase by the Investor of the Purchased Securities. Except to the extent supplemented or superseded by the terms set forth herein or in the Schedules hereto, the provisions contained in the Securities Purchase Agreement Standard Terms attached hereto as Exhibit A (the Securities Purchase Agreement) are incorporated by reference herein. Terms that are defined in the Securities Purchase Agreement are used in this letter agreement as so defined. In the event of any inconsistency between this letter agreement and the Securities Purchase Agreement, the terms of this letter agreement shall govern.
Each of the Company and the Investor hereby confirms its agreement with the other party with respect to the issuance by the Company of the Purchased Securities and the purchase by the Investor of the Purchased Securities pursuant to this letter agreement and the Securities Purchase Agreement on the terms specified on Schedule A hereto.
This letter agreement (including the Schedules hereto) and the Securities Purchase Agreement (including the Annexes thereto) and the Warrant constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, between the parties, with respect to the subject matter hereof. This letter agreement constitutes the Letter Agreement referred to in the Securities Purchase Agreement.
This letter agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Executed signature pages to this letter agreement may be delivered by facsimile and such facsimiles will be deemed as sufficient as if actual signature pages had been delivered.
***
In witness whereof, this letter agreement has been duly executed and delivered by the duly authorized representatives of the parties hereto as of the date written below.
UNITED STATES DEPARTMENT OF THE TREASURY | ||
By: |
| |
Name: | ||
Title: |
COMPANY: NARA BANCORP, INC. | ||
By: |
| |
Name: | Min Kim | |
Title: | President and Chief Executive Officer |
Date:
EXHIBIT A
SECURITIES PURCHASE AGREEMENT
SCHEDULE A
ADDITIONAL TERMS AND CONDITIONS
Company Information:
Name of the Company: Nara Bancorp, Inc.
Corporate or other organizational form: Corporation
Jurisdiction of Organization: Delaware
Appropriate Federal Banking Agency: Federal Reserve Board
Notice Information: | Nara Bancorp, Inc. | |
3731 Wilshire Blvd., Suite 1000 | ||
Los Angeles, California 90010 | ||
Attention: Alvin D. Kang, Executive Vice President and Chief Financial Officer | ||
Facsimile: (213) 235-3033 | ||
Copy to: | Mayer Brown LLP | |
350 South Grand Avenue | ||
Los Angeles, California 90071 | ||
Attention: James R. Walther, Esq. | ||
Facsimile: (213) 625-0248 |
Terms of the Purchase:
Series of Preferred Stock Purchased: Fixed Rate Cumulative Perpetual Preferred Stock, Series A
Per Share Liquidation Preference of Preferred Stock: $1,000
Number of Shares of Preferred Stock Purchased: 67,000
Dividend Payment Dates on the Preferred Stock: February 15, May 15, August 15, and November 15 of each year
Number of Initial Warrant Shares: 1,042,531
Exercise Price of the Warrant: $9.64
Purchase Price: $67,000,000
SCHEDULE A
Closing:
Location of Closing: Telephonic
Time and Date of Closing: 8:00AM (PST) on November 21, 2008
Wire Information for Closing: | ABA Number: 1220-4172-7 | |
Bank: Nara Bank | ||
Account Name: Nara Bancorp, Inc. | ||
Account Number: *********** | ||
Beneficiary: Nara Bancorp, Inc. | ||
Attn: Alvin D. Kang, Executive Vice President and Chief Financial Officer |
SCHEDULE B
CAPITALIZATION
Capitalization Date: | October 31, 2008 | ||
Common Stock | |||
Par value: | $ | 0.001 | |
Total Authorized: | 40,000,000 | ||
Outstanding: | 26,201,672 | ||
Subject to options, warrants, convertible securities, etc.: | 1,288,120 | ||
Reserved for benefit plans and other issuances: | 1,255,800 | ||
Remaining authorized but unissued: | 13,798,328 | ||
Shares issued after Capitalization Date: | 0 | ||
(other than pursuant to warrants, options, convertible securities, etc. as set forth above) | |||
Preferred Stock | |||
Par value: | $ | 0.001 | |
Total Authorized: | 10,000,000 | ||
Outstanding (by series): | 0 | ||
Reserved for issuance: | 0 | ||
Remaining authorized but unissued: | 10,000,000 |
SCHEDULE C
REQUIRED STOCKHOLDER APPROVALS
Required1 | % Vote Required | |||
Warrants Common Stock Issuance | ||||
Charter Amendment | ||||
Stock Exchange Rules |
If no stockholder approvals are required, please so indicate by checking the box: x.
1 | If stockholder approval is required, indicate applicable class/series of capital stock that are required to vote. |
SCHEDULE D
LITIGATION
List any exceptions to the representation and warranty in Section 2.2(l) of the Securities Purchase Agreement Standard Terms.
The Company is a nominal defendant in a shareholder derivative lawsuit which purports to be brought on the Companys behalf by Dr. Thomas Chung, a former chairman of the Companys board of directors (the Chung Lawsuit) which was filed on May 20, 2008 in the Superior Court of California, County of Los Angeles. The Chung Lawsuit alleges that the members of the Companys board of directors as composed on the date the lawsuit was filed, as well as the Company board as it was composed in March 2005 (collectively, the Boards) breached their fiduciary duties to the Companys shareholders and mismanaged corporate assets. In addition, the Chung Lawsuit names Mr. Chong-Moon Lee, also a former Chairman of the Companys board of directors as a defendant and alleges that Mr. Lee violated insider trading laws and wasted corporate assets.
The Chung Lawsuit alleges that the 2005 restatement of the Companys 2002 financial statements was not required and was undertaken by the Board as composed in 2005 in bad faith. Dr. Chung further alleges that the restatement resulted in a decline of $54 million in the value of the Companys outstanding stock, that Mr. Lee was aware (and the public was not) that the restatement was improper and that the Companys stock price was therefore artificially low, at the time he subsequently purchased 1.4 million shares of common stock from the Company in 2005, and that the Board as composed in 2008 breached its fiduciary duties by failing to pursue the claims alleged in the Chung Lawsuit. Dr. Chung also alleges, among other things, that the Board as composed in 2008 breached its fiduciary duties by failing to pursue claims against the Companys auditors, Crowe Chizek & Company, the law firm that advised the Company in connection with the restatement, Fulbright & Jaworski, and the consulting firm who advised the Company and its counsel in connection with the restatement, Navigant Consultants. The letter between Dr. Chung and Mr. Hong, the restatement of the Companys 2002 financial statements and certain related matters are further described in the form 8-K/A filed March 31, 2005.
The complaint alleges damages exceeding $54 million from the Boards and $7.168 million from Mr. Lee, together with reimbursement from all defendants of his legal costs incurred in pursuing the Chung Lawsuit. If any damages are ever recovered by the purported shareholder derivative lawsuit, such damages, but not any awards of legal costs, would be payable to the Company.
The Company filed a demurrer with the Superior Court seeking to dismiss the Chung Lawsuit for failure to state a cause of action on which relief may be based on July 9, 2008. Oral argument on the demurrer is currently scheduled to be heard by the court on December 22, 2008. The Company believes the Chung Lawsuit is without merit.
If none, please so indicate by checking the box: ¨.
SCHEDULE E
COMPLIANCE WITH LAWS
List any exceptions to the representation and warranty in the second sentence of Section 2.2(m) of the Securities Purchase Agreement Standard Terms.
If none, please so indicate by checking the box: x.
List any exceptions to the representation and warranty in the last sentence of Section 2.2(m) of the Securities Purchase Agreement Standard Terms.
If none, please so indicate by checking the box: x.
SCHEDULE F
REGULATORY AGREEMENTS
List any exceptions to the representation and warranty in Section 2.2(s) of the Securities Purchase Agreement Standard Terms.
On July 29, 2005, the Federal Reserve Bank of San Francisco (the Reserve Bank) and the California Department of Financial Institutions (together with the Reserve Bank, the Regulatory Agencies) entered into a Memorandum of Understanding (the MOU) with Nara Bank. The MOU required that Nara Bank take steps to strengthen management, board oversight and internal controls. Upon review of Nara Banks compliance with the requirements of the MOU, the Regulatory Agencies terminated the MOU by letter dated July 12, 2007.
If none, please so indicate by checking the box: ¨.