UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): August 11, 2009
Guaranty Bancorp
(Exact Name of Registrant as Specified in its Charter)
Delaware |
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000-51556 |
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41-2150446 |
(State or Other Jurisdiction
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(Commission
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(IRS Employer
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1331
Seventeenth St., Suite 300
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80202 |
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(Address of Principal Executive Office) |
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(Zip Code) |
(303) 293-5563
(Registrants telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o 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 August 11, 2009, Guaranty Bancorp (the Company) entered into an amendment (the Amendment) to the Investment Agreement, dated as of May 6, 2009 (the Investment Agreement), by and among the Company, Patriot Financial Partners, L.P., Patriot Financial Partners Parallel, L.P. (together, Patriot), Relational Investors Mid-Cap Fund I, L.P., Relational Investors Mid-Cap Fund II, L.P. (together, Relational) and Castle Creek Capital Partners III, L.P. (Castle Creek, and together with Patriot and Relational, the Initial Investors), and the other investors that previously entered into joinder agreements with the Company, related to the issuance and sale of up to 60,000 shares of a new series of the Companys preferred stock, Series A Convertible Preferred Stock (the Series A Preferred Stock), par value $0.001 per share (the Transaction). Among other things, the Amendment provides for a decrease in the conversion price of the Series A Preferred Stock in $0.04 increments (subject to a minimum of $1.50) for each period the Company fails to pay dividends on the Series A Preferred Stock.
The terms of the Investment Agreement and the Series A Preferred Stock were previously described in the Companys Current Report on Form 8-K filed with the Securities and Exchange Commission on May 6, 2009 (the May 6 8-K). The description of the Amendment and the terms of the Series A Preferred Stock contained herein are summaries only, and are qualified in their entirety by reference to the full text of the Amendment and the Certificate of Designations for the Series A Preferred Stock. A copy of the Amendment is attached as Exhibit 10.1 hereto and is incorporated herein by reference. A copy of the Certificate of Designations for the Series A Preferred Stock is attached as Exhibit 4.1 hereto and is incorporated herein by reference.
ITEM 3.02 UNREGISTERED SALES OF EQUITY SECURITIES
On August 11, 2009, the Company entered into joinder agreements with certain investors (the Additional Investors) pursuant to which the Additional Investors became parties to the Investment Agreement, as amended by the Amendment.
Pursuant to the terms of the Investment Agreement and the Companys joinder agreements with each of the Additional Investors, the Company agreed to issue to the Additional Investors an aggregate of 6,153 shares of Series A Preferred Stock, with a stated value of $1,000 per share, for an aggregate purchase price of $6.153 million. The Company had previously agreed to issue an aggregate of 52,900 shares of Series A Preferred Stock to the Initial Investors and other investors that previously entered into joinder agreements with the Company for an aggregate purchase price of $52.9 million.
Each share of Series A Preferred Stock will automatically convert into shares of the Companys common stock on the fifth anniversary of the date the Series A Preferred Stock is issued, subject to certain limitations. The Additional Investors may elect to convert their shares of Series A Preferred Stock into shares of the Companys common stock prior to the mandatory conversion of the Series A Preferred Stock following the earlier of the second anniversary of the date the Series A Preferred Stock is issued and the occurrence of certain events resulting in the conversion, exchange or reclassification of the Companys common stock. Each share of Series A Preferred Stock will be convertible into shares of common stock at a conversion price of $1.80 per share, adjustable downward in $0.04 increments to $1.50 per share in the event of certain nonpayments of dividends (whether paid in cash or in kind) on the Series A Preferred Stock. The conversion price of the Series A Preferred Stock is subject to customary anti-dilution adjustments.
The shares of Series A Preferred Stock and any securities issuable upon their conversion, including shares of common stock, were offered and sold or will be sold by the Company in reliance on an exemption from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended.
The description of the Investment Agreement, the Amendment and the terms of the Series A Preferred Stock contained herein are summaries only, and are qualified in their entirety by reference to the full text of the Investment Agreement, as amended by the Amendment. A copy of the Investment Agreement is attached as Exhibit 10.1 to the May 6 8-K and is incorporated herein by reference. A copy of the Amendment is attached as Exhibit 10.1 hereto and is incorporated herein by reference. A copy of the Certificate of Designations for the Series A Preferred Stock is attached as Exhibit 4.1 hereto and is incorporated herein by reference.
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ITEM 3.03 MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS
The information set forth under Item 1.01 is incorporated herein by reference.
Following the issuance of the Series A Preferred Stock pursuant to the Investment Agreement, the Companys ability to (i) declare or pay dividends on, make distributions with respect to, or redeem, purchase or acquire, or make a liquidation payment with respect to, or pay or make available monies for the redemption of, shares of its common stock and Junior Securities (as defined below) and (ii) redeem, purchase or acquire, or make a liquidation payment with respect to, or pay or make available monies for the redemption of, any Parity Securities (as defined below) will be subject to certain restrictions in the event the Company does not pay in full or declare and set aside for payment in full dividends on the Series A Preferred Stock.
Junior Securities means the Companys common stock and each other class or series of capital stock outstanding or established after the issuance of the Series A Preferred Stock by the Company the terms of which do not expressly provide that it ranks on a parity with or senior to the Series A Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Company. Parity Securities means each other class or series of preferred stock established after the issuance of the Series A Preferred Stock by the Company the terms of which expressly provide that such class or series will rank on a parity with the Series A Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Company.
ITEM 5.02 DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS
On August 11, 2009, in connection with the closing of the Transaction, W. Kirk Wycoff was appointed to the Companys Board of Directors. Mr. Wycoff was appointed to the Board of Directors of the Company and elected to the Board of Directors of Guaranty Bank and Trust Company, the Companys subsidiary, at the request of Patriot, of which he is a managing partner, pursuant to Patriots right under the Investment Agreement to have a director appointed or elected. Additionally, Mr. Wycoff was appointed to serve on both the Audit and Corporate Risk Committees of the Board of Directors of the Company. The Companys Board of Directors also affirmatively determined that Mr. Wycoff meets the independence requirements of the NASDAQ listing standards. Mr. Wycoff is also a limited partner in Patriot. He has no personal interest in the Transaction other than to the extent of his indirect interest therein as a limited partner of Patriot.
In connection with Mr. Wycoffs appointment to the Companys Board of Directors, the Company and Mr. Wycoff entered into an Indemnification Agreement, dated as of August 11, 2009, substantially in the form of the Companys Form of Indemnification Agreement, which is attached as Exhibit 10.1 to the Companys Annual Report on Form 10-K for the year ended December 31, 2008. The Indemnification Agreement provides for indemnification by the Company to the full extent permitted under Delaware law and sets forth the procedures under which indemnification and advancement of expenses will be provided to the indemnitee.
A copy of the Investment Agreement is attached as Exhibit 10.1 to the May 6 8-K and is incorporated herein by reference. A copy of the Amendment is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR
On August 11, 2009, the Company filed its Second Amended and Restated Certificate of Incorporation and the Certificate of Designations for the Series A Preferred Stock with the Secretary of State of the State of Delaware. The Second Amended and Restated Certificate of Incorporation was approved by the Companys stockholders at the special meeting of stockholders held on June 29, 2009.
A copy of the Companys Second Amended and Restated Certificate of Incorporation is attached as Exhibit 3.1 hereto and a copy of the Certificate of Designations for the Series A Preferred Stock is attached as Exhibit 4.1 hereto.
ITEM 8.01 OTHER EVENTS
On August 11, 2009, the Company issued a press release announcing the closing of the Transaction. A copy of the press release is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
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ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits
The following exhibits are filed herewith:
Exhibit |
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Description |
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3.1 |
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Second Amended and Restated Certificate of Incorporation of the Company, dated August 11, 2009. |
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4.1 |
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Certificate of Designations for Series A Convertible Preferred Stock. |
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10.1 |
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Amendment No. 1 to Investment Agreement, dated as of August 11, 2009, by and among Guaranty Bancorp and the Investors named therein. |
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99.1 |
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Press Release, dated August 11, 2009. |
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SIGNATURE
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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GUARANTY BANCORP |
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Date: August 11, 2009 |
By: |
/s/ Paul W. Taylor |
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Name: Paul W. Taylor |
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Title: Executive Vice President, Chief Financial and Operating Officer and Secretary |
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EXHIBIT INDEX
Exhibit |
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Description |
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3.1 |
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Second Amended and Restated Certificate of Incorporation of the Company, dated August 11, 2009. |
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4.1 |
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Certificate of Designations for Series A Convertible Preferred Stock. |
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10.1 |
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Amendment No. 1 to Investment Agreement, dated as of August 11, 2009, by and among Guaranty Bancorp and the Investors named therein. |
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99.1 |
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Press Release, dated August 11, 2009. |
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Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
GUARANTY BANCORP
GUARANTY BANCORP, a corporation duly organized and existing under the Delaware General Corporation Law, does hereby certify:
1. The corporations original certificate of incorporation was filed on March 3, 2004 under the name Centennial C Corp . The corporation has previously filed an amended and restated certificate of incorporation on June 8, 2005 and an amendment thereto on May 6, 2008.
2. The following amendment and restatement of the corporations Certificate of Incorporation was duly adopted in accordance with the provisions of Sections 242 and 245 of the Delaware General Corporation Law by the favorable vote of the holders of a majority of the outstanding stock entitled to vote thereon:
FIRST. The name of the corporation is Guaranty Bancorp.
SECOND. The address of the corporations registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, New Castle County, Wilmington, DE 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of stock that the corporation shall have authority to issue is 200,000,000, of which 143,750,000 shares of the par value of one-tenth of one cent ($0.001) per share shall be a separate class designated as Voting Common Stock (Voting Common Stock), 6,250,000 shares of the par value of one-tenth of one cent ($0.001) shall be a separate class designated as Non-Voting Common Stock (Non-Voting Common Stock, and together with Voting Common Stock, Common Stock) and 50,000,000 shares of the par value of one-tenth of one cent ($0.001) shall be a separate class designated as Preferred Stock.
COMMON STOCK
Except as may be provided in this Second Amended and Restated Certificate of Incorporation or required by law, the Voting Common Stock shall have voting rights in the election of directors and on all other matters presented to stockholders, with each holder of Voting Common Stock being entitled to one vote for each share of Voting Common Stock held of record by such holder on such matters.
The holders of Non-Voting Common Stock, as such, shall have no voting power and shall not be entitled to vote on any matter except as otherwise required by law or as otherwise expressly provided for herein. Except as otherwise provided herein, Non-Voting Common Stock shall in all other respects carry the same rights and privileges as Voting Common Stock (including in respect of dividends and in respect of distributions upon any dissolution, liquidation or winding up of the corporation) and be treated the same as Voting Common Stock (including in any merger, consolidation, share exchange or other similar transaction); provided that, if the corporation shall in any manner split, subdivide or combine (including by way of a dividend payable in shares of Voting Common Stock or Non-Voting Common Stock) the outstanding shares of Voting Common Stock or Non-Voting Common Stock, the outstanding shares of the other such class of Common Stock shall likewise be split, subdivided or combined in the same manner proportionately and on the same basis per share, and provided further, that any dividend on the Common Stock that is payable in Common Stock shall be paid only in Non-Voting Common Stock on the Non-Voting Common Stock and only in Voting Common Stock on the Voting Common Stock. Notwithstanding the foregoing, and in addition to any other vote required by law, the affirmative vote of a majority of the outstanding shares of Non-Voting Common Stock, voting separately as a class, shall be required to amend, alter or repeal (including by merger, consolidation or otherwise) any provision of this Second Amended and Restated Certificate of Incorporation that adversely affects the powers, preferences or rights of the Non-Voting Common Stock contained herein in a manner that is materially adverse from the effect of such amendment, alteration or repeal on the Voting Common Stock.
Subject to the rights of the holders of any series of Preferred Stock, holders of Common Stock shall be entitled to receive such dividends and distributions (whether payable in cash or otherwise) as may be declared on the Common Stock from time to time out of assets or funds of the corporation legally available therefor. Subject to the rights of the holders of any series of Preferred Stock, in the event of any liquidation, dissolution or winding-up of the corporation (whether voluntary or involuntary), the assets of the corporation available for distribution to stockholders shall be distributed in equal amounts per share to the holders of Common Stock.
Any holder of Voting Common Stock may at any time and from time to time elect to convert any number of shares of Voting Common Stock then held by such stockholder into an equal number of shares of Non-Voting Common Stock with the prior approval of the Board of Directors acting in its sole and absolute discretion or pursuant to a written agreement with the corporation expressly providing for such conversion. Any holder of Non-Voting Common Stock may convert any number of shares of Non-Voting Common Stock into an equal number of shares of Voting Common Stock, but only if such conversion is in connection with (i) a transfer that is made in accordance with and as permitted by guidance and policies established by the Board of Governors of the Federal Reserve System as applicable and in effect at the time of transfer or (ii) with the prior approval of the Board of Directors acting in its sole and absolute discretion (the Conversion Conditions). If the corporation ceases to be a bank holding company, then the Conversion Conditions shall lapse and any holder of Non-Voting Common Stock may
convert such shares of Non-Voting Common Stock into Voting Common Stock without limitation as described herein.
Until presented and surrendered for cancellation following any such conversion satisfying one or more of the Conversion Conditions, each certificate representing shares of Non-Voting Common Stock in respect of which a conversion has occurred in accordance with this Article FOURTH shall be deemed to represent the number of shares of Voting Common Stock into which such shares have been converted, and upon presentation and surrender of such certificate the holder thereof shall be entitled to receive a certificate for the appropriate number of shares of Voting Common Stock. Upon a conversion pursuant to this Article FOURTH, each converted share of Non-Voting Common Stock shall be retired.
PREFERRED STOCK
Shares of Preferred Stock may be issued in one or more series from time to time as determined by the Board of Directors of the corporation, and the Board of Directors of the corporation is authorized to fix by resolution or resolutions the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, of the shares of each series of Preferred Stock, including the following:
(i) the distinctive serial designation of such series which shall distinguish it from other series;
(ii) the number of shares included in such series;
(iii) whether dividends shall be payable to the holders of the shares of such series and, if so, the basis on which such holders shall be entitled to receive dividends (which may include, without limitation, a right to receive such dividends or distributions as may be declared on the shares of such series by the Board of Directors of the corporation, a right to receive such dividends or distributions, or any portion or multiple thereof, as may be declared on the Common Stock or any other class of stock or, in addition to or in lieu of any other right to receive dividends, a right to receive dividends at a particular rate or at a rate determined by a particular method, in which case such rate or method of determining such rate may be set forth), the form of such dividend, any conditions on which such dividends shall be payable and the date or dates, if any, on which such dividends shall be payable;
(iv) whether dividends on the shares of such series shall be cumulative and, if so, the date or dates or method of determining the date or dates from which dividends on the shares of such series shall be cumulative;
(v) the amount or amounts, if any, which shall be payable out of the assets of the corporation to the holders of the shares of such series upon the voluntary or involuntary liquidation, dissolution or winding-up of the corporation, and the relative rights of priority, if any, of payment of the shares of such series;
(vi) the price or prices (in cash, securities or other property or a combination thereof) at which, the period or periods within which and the terms and conditions upon which the shares of such series may be redeemed, in whole or in part, at the option of the corporation or at the option of the holder or holders thereof or upon the happening of a specified event or events;
(vii) the obligation, if any, of the corporation to purchase or redeem shares of such series pursuant to a sinking fund or otherwise and the price or prices (in cash, securities or other property or a combination thereof) at which, the period or periods within which and the terms and conditions upon which the shares of such series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(viii) whether or not the shares of such series shall be convertible or exchangeable, at any time or times at the option of the holder or holders thereof or at the option of the corporation or upon the happening of a specified event or events, into shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation or any other securities or property of the corporation or any other entity, and the price or prices (in cash, securities or other property or a combination thereof) or rate or rates of conversion or exchange and any adjustments applicable thereto; and
(ix) whether or not the holders of the shares of such series shall have voting rights, in addition to the voting rights provided by law, and if so the terms of such voting rights, which may provide, among other things and subject to the other provisions of this Second Amended and Restated Certificate of Incorporation, that each share of such series shall carry one vote or more or less than one vote per share, that the holders of such series shall be entitled to vote on certain matters as a separate class (which for such purpose may be comprised solely of such series or of such series and one or more other series or classes of stock of the corporation) and that all the shares of such series entitled to vote on a particular matter shall be deemed to be voted on such matter in the manner that a specified portion of the voting power of the shares of such series or separate class are voted on such matter.
For all purposes, this Second Amended and Restated Certificate of Incorporation shall include each certificate of designations (if any) setting forth the terms of a series of Preferred Stock.
Subject to the rights, if any, of the holders of any series of Preferred Stock set forth in a certificate of designations, an amendment of this Second Amended and Restated Certificate of Incorporation to increase or decrease the number of authorized shares of any series of Preferred Stock (but not below the number of shares thereof then outstanding) may be adopted by resolution adopted by the Board of Directors of the corporation and approved by the affirmative vote of the holders of a majority of the voting power of all outstanding shares of Voting Common Stock of the corporation and all other outstanding shares of stock of the corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation
Law or any similar provision hereafter enacted, with such outstanding shares of Voting Common Stock and other stock considered for this purpose as a single class, and no vote of the holders of any series of Preferred Stock, voting as a separate class, shall be required therefor.
Except as otherwise required by law or provided in the certificate of designations for the relevant series, holders of Common Stock, as such, shall not be entitled to vote on any amendment of this Second Amended and Restated Certificate of Incorporation that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other series of Preferred Stock, to vote thereon as a separate class pursuant to this Second Amended and Restated Certificate of Incorporation or pursuant to the Delaware General Corporation Law as then in effect.
FIFTH. The corporation elects not to be governed by Section 203 of the Delaware General Corporation Law, Business Combinations With Interested Stockholders, as permitted under and pursuant to subsection (b)(3) thereof.
SIXTH. All corporate powers shall be exercised by the Board of Directors of the corporation, except as otherwise specifically required by law or as otherwise provided in this Second Amended and Restated Certificate of Incorporation. Any meeting of stockholders may be postponed by action of the Board of Directors at any time in advance of such meeting. The Board of Directors shall have the power to adopt such rules and regulations for the conduct of the meetings and management of the affairs of the corporation as they may deem proper and the power to adjourn any meeting of stockholders without a vote of the stockholders, which powers may be delegated by the Board of Directors to the chairman of such meeting either in rules and regulations or pursuant to the Bylaws of the corporation.
Special meetings of stockholders of the corporation may be called at any time by, but only by, the Board of Directors, the Chairman of the Board of Directors or the stockholders in the manner specified in the Bylaws, to be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting.
The Board of Directors of the corporation is authorized to adopt, amend or repeal Bylaws of the corporation.
SEVENTH. Elections of directors need not be by written ballot except and to the extent provided in the Bylaws of the corporation.
EIGHTH. The number of directors of the corporation shall be fixed from time to time pursuant to the Bylaws of the corporation. A director may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, considered for this purpose as a single class.
Vacancies and newly created directorships resulting from any increase in the authorized number of directors (other than any directors elected in the manner described in the next sentence) or from any other cause shall be filled by, and only by, a majority of the directors then in office, although less than a quorum, or by the sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled by this Second Amended and Restated Certificate of Incorporation to elect one or more directors, vacancies and newly created directorships of such class or classes or series may be filled by, and only by, a majority of the directors elected by such class or classes or series then in office, or by the sole remaining director so elected. Any director elected or appointed to fill a vacancy or a newly created directorship shall hold office until the next election of directors, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. When one or more Directors shall resign effective at a future date, a majority of the Directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each Director so chosen shall hold office as herein provided in connection with the filling of other vacancies.
Notwithstanding the foregoing, in the event that the holders of any class or series of Preferred Stock of the corporation shall be entitled, voting separately as a class, to elect any directors of the corporation, then the number of directors that may be elected by such holders voting separately as a class shall be in addition to the number fixed pursuant to a resolution of the Board of Directors of the corporation. Except as otherwise provided in the terms of such class or series, (i) the terms of the directors elected by such holders voting separately as a class shall expire at the annual meeting of stockholders and (ii) any director or directors elected by such holders voting separately as a class may be removed, with or without cause, by the holders of a majority of the voting power of all outstanding shares of stock of the corporation entitled to vote separately as a class in an election of such directors.
NINTH. Any action required to be taken or which may be taken at any annual or special meeting of the stockholders of the corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted; provided that any action required or permitted to be taken by the holders of Common Stock, including but not limited to the election of directors, may be taken by written consent or consents but only if such consent or consents are signed by all holders of Common Stock entitled to vote thereon. The holders of any series of Preferred Stock of the corporation shall be entitled to take action by written consent to such extent, if any, as may be provided in the terms of such series.
TENTH. A director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that such exemption from liability or limitation thereof is not permitted under
the Delaware General Corporation Law as in effect as of the date of this Second Amended and Restated Certificate of Incorporation or as the same may hereafter be amended. No amendment, modification or repeal of this Article TENTH shall adversely affect any right or protection of a director that exists at the time of such amendment, modification or repeal.
IN WITNESS WHEREOF, the corporation has caused this certificate to be signed and attested by its duly authorized officer on this 11th day of August, 2009.
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/s/ Paul W. Taylor |
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Name: |
Paul W. Taylor |
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Title: |
Executive Vice President, |
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Chief Financial and Operating |
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Officer and Secretary |
Exhibit 4.1
CERTIFICATE OF DESIGNATIONS FOR
SERIES A CONVERTIBLE PREFERRED STOCK
OF GUARANTY BANCORP
Pursuant
to Section 151 of the
General Corporation Law of the State of Delaware
Guaranty Bancorp (the Company ), a corporation organized and existing under the General Corporation Law of the State of Delaware (the DGCL ), does hereby certify that, pursuant to authority conferred upon its Board of Directors by the Companys Amended and Restated Certificate of Incorporation, and pursuant to the provisions of Section 151 of the DGCL, its Board of Directors, at a meeting duly called and held on August 4, 2009, duly approved and adopted the following resolution:
RESOLVED, that, pursuant to the authority vested in the Board of Directors by the Companys Amended and Restated Certificate of Incorporation, the Board of Directors does hereby create, authorize and provide for the issuance of Series A Convertible Preferred Stock, par value $0.001 per share, with a stated value of $1,000 per share, consisting of up to 73,280 shares, having the designations, preferences, relative, participating, optional and other special rights and the qualifications, limitations and restrictions that are set forth in the Companys Amended and Restated Certificate of Incorporation and in this Resolution as follows:
Affiliate means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with such other Person.
Applicable Regulatory Approval means, with respect to a particular Holder, all governmental, quasi-governmental, court or regulatory approvals, consents or statements of non-objection necessary to allow such Holder to acquire the shares of Common Stock issuable upon conversion of the Series A Preferred Stock held by it or to own or control such shares of Common Stock (taking into account Section 8(c), Section 9(g) and Section 9(h)) and the expiration or earlier termination of any required waiting period, including any approvals, consents or statements of non-objection required by any state or federal banking regulatory authority.
Board of Directors means the board of directors of the Company or, with respect to any action to be taken by such board of directors, any committee of the board of directors duly authorized to take such action.
Business Day means any day other than a Saturday, a Sunday or a day on which banks are required or permitted by law or executive order to be closed in the State of New York or Colorado.
Castle Creek means Castle Creek Capital Partners III, L.P.
Certificate of Designations means this Certificate of Designations of the Series A Preferred Stock.
Certificate of Incorporation means the Amended and Restated Certificate of Incorporation of the Company, as amended prior to the Issue Date and as amended by this Certificate of Designations and as may be further amended.
Closing Price of the Common Stock (or any other securities, cash or other property into which the Series A Preferred Stock becomes convertible in connection with any Reorganization Event) on any Trading Day means the reported last sale price per share (or, if no last sale price is reported, the average of the bid and ask prices per share or, if more than one in either case, the average of the average bid and the average ask prices per share) on such date as reported by the NASDAQ Stock Market, or, if the Common Stock (or such other property) is not listed on the NASDAQ Stock Market, then as reported by the principal national securities exchange on which the Common Stock (or such other property) is listed, or if the Common Stock (or such other property) is not so listed or quoted on a U.S. national securities exchange, or, if no closing price for the Common Stock (or such property) is so reported, the last quoted bid price for the Common Stock (or such property) in the over-the-counter market as reported by Pink Sheets LLC or similar organization, or, if that bid price is not available, the market price of the Common Stock (or such property) on that date as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company. For the purposes of this Certificate of Designations, all references herein to the closing sale price and the last sale price reported of the Common Stock (or other property) on the NASDAQ Stock Market shall be the closing sale price and last reported sale price as reflected on the website of the NASDAQ Stock Market (www.nasdaq.com) and as reported by Bloomberg Professional Service; provided
A-2
that in the event that there is a discrepancy between the closing price and the last reported sale price as reflected on the website of the NASDAQ Stock Market and as reported by Bloomberg Professional Service, the closing sale price and the last reported sale price on the website of the NASDAQ Stock Market shall govern.
Common Stock means the Companys common stock, par value $0.001 per share.
Company has the meaning set forth in the preamble.
Conversion Date has the meaning set forth in Section 10(a).
Conversion Notice has the meaning set forth in Section 9(b).
Conversion Price means, for each share of Series A Preferred Stock, $1.80; provided, however, that:
(i) in the event of the occurrence of an Unpaid Dividend as to a Dividend Payment Date (such Dividend Payment Date, the First Missed Dividend Date ) and the failure of the Company to pay such Unpaid Dividend by the Dividend Payment Date in the twelfth calendar month after the First Missed Dividend Date (such Dividend Payment Date, the First Missed Dividend Adjustment Date ), the Conversion Price shall decrease on the first Business Day following the First Missed Dividend Adjustment Date by $0.04 with respect to the Unpaid Dividend relating to the First Missed Dividend Date and by an additional $0.04 with respect to each Unpaid Dividend, if any, as to a Dividend Payment Date after the First Missed Dividend Date to and including the First Missed Dividend Adjustment Date;
(ii) in the event of the occurrence of an Unpaid Dividend as to a Dividend Payment Date after the First Missed Dividend Adjustment Date, the Conversion Price shall decrease on the first Business Day following such Dividend Payment Date by an additional $0.04;
(iii) in the event of the occurrence of one or more Unpaid Dividends and the failure of the Company to pay such Unpaid Dividends by the Mandatory Conversion Date, and provided that such Unpaid Dividends have not by the Mandatory Conversion Date resulted in an adjustment to the Conversion Price pursuant to clause (i) or (ii) above, the Conversion Price shall be deemed to have decreased as of the first Business Day immediately preceding the Mandatory Conversion Price by an additional $0.04 with respect to each such Unpaid Dividend;
(iv) the maximum adjustment pursuant to clauses (i), (ii) and (iii) above is $0.30 and in no event shall the downward adjustment of the Conversion Price pursuant to such clauses exceed $0.30; and
(v) notwithstanding clauses (i) through (iv) above, in the event an adjustment in the Conversion Price occurs pursuant to Section 13, contemporaneously with such
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adjustment a corresponding adjustment shall be made in the $0.04 and $0.30 amounts used in this definition, including such amounts as they may previously have been adjusted pursuant to this clause (v) (each a Reference Amount ) so that, after giving effect to such adjustment, each reference to the applicable Reference Amount shall be to an adjusted amount that bears the same ratio to the respective Reference Amount that the Conversion Price as adjusted pursuant to Section 13 bears to $1.80 (or the then applicable Conversion Price).
Conversion Rate means that number of Conversion Securities into which one share of Series A Preferred Stock shall be convertible pursuant to Section 8(a) or 9(a), determined by dividing the Liquidation Preference by the Conversion Price.
Conversion Securities means shares of Common Stock, Non-Voting Common Stock or Series B Preferred Stock, as the case may be, as determined pursuant to Section 9(h).
Current Market Price means, on any date, the average of the daily Closing Price per share of the Common Stock or other securities on each of the five consecutive Trading Days preceding the earlier of the day before the date in question and the day before the Ex-Date with respect to the issuance or distribution giving rise to an adjustment to the Conversion Price pursuant to Section 13.
DGCL has the meaning set forth in the preamble.
Dividend Payment Date has the meaning set forth in Section 4(a)(i).
Dividend Period has the meaning set forth in Section 4(a).
Exchange Property has the meaning set forth in Section 16(a).
Ex-Date , when used with respect to any issuance or distribution, means the first date on which the Common Stock or other securities trade without the right to receive the issuance or distribution giving rise to an adjustment to the Conversion Price pursuant to Section 13.
Holder means a Person in whose name the shares of the Series A Preferred Stock are registered, which may be treated by the Company and the Transfer Agent as the absolute owner of the shares of Series A Preferred Stock for the purpose of making payment and settling conversions and for all other purposes.
Investment Agreement means the Investment Agreement, dated as of May 6, 2009, by and among the Company, Castle Creek, Patriot, Relational and the other investors that may become party thereto from time to time, as it may be amended from time to time.
Issue Date means August 11, 2009, the original date of issuance of the Series A Preferred Stock.
Junior Securities has the meaning set forth in Section 3.
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Liquidation Preference means, as to the Series A Preferred Stock, $1,000 per share, plus all accrued but unpaid dividends thereon.
Mandatory Conversion Date means the fifth anniversary of the Issue Date.
Market Disruption Event means the occurrence or existence for more than one half hour period in the aggregate on any Scheduled Trading Day for the Common Stock (or any other securities, cash or other property into which the Series A Preferred Stock becomes convertible in connection with any Reorganization Event) of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the NASDAQ Stock Market or otherwise) in the Common Stock (or such other property) or in any options, contracts or future contracts relating to the Common Stock (or such other property), and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.
Non-Voting Common Stock means the non-voting Common Stock of the Company, par value $0.001 per share, contemplated by Section 9(e) of the Investment Agreement.
Option Dividend Termination Date has the meaning set forth in Section 4(a)(i).
Optional Conversion Date has the meaning set forth in Section 9(e).
Optional Convertibility Inception Date means the earlier to occur of (i) the date of the second anniversary of the Issue Date and (ii) the date of consummation of a Reorganization Event.
Parity Securities has the meaning set forth in Section 3.
Patriot means, collectively, Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P.
Person means an individual, corporation, partnership, association, joint stock company, limited liability company, joint venture, trust, governmental entity, unincorporated organization or other legal entity.
PIK Dividends has the meaning set forth in Section 4(a)(i)(B).
Relational means collectively Relational Investors Mid-Cap Fund I, L.P. and Relational Investors Mid-Cap Fund II, L.P.
Reorganization Event has the meaning set forth in Section 16(a)(iv).
Scheduled Trading Day means a day that is scheduled to be a Trading Day on the primary U.S. national securities exchange or market on which the Common Stock is listed or, if the Common Stock is not listed on a U.S. national securities exchange, on the principal other market on which the Common Stock is then traded.
A-5
Senior Securities means any shares or equity securities that rank, with respect to dividend rights and rights on liquidation, winding up and dissolution of the Company, senior to the Series A Preferred Stock.
Series A Preferred Stock has the meaning set forth in Section 1.
Series B Preferred Stock means the series of the Companys preferred stock as contemplated by Section 9(e) of the Investment Agreement.
Trading Day means any day on which (i) there is no Market Disruption Event and (ii) the NASDAQ Stock Market is open for trading, or, if the Common Stock (or any other securities, cash or other property into which the Series A Preferred Stock becomes convertible in connection with any Reorganization Event) is not listed on the NASDAQ Stock Market, any day on which the principal national securities exchange on which the Common Stock (or such other property) is listed is open for trading, or, if the Common Stock (or such other property) is not listed on a national securities exchange, any Business Day. A Trading Day only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the relevant exchange or trading system.
Transfer Agent means Computershare Investor Services, LLC, the Companys duly appointed transfer agent, registrar, conversion and dividend disbursing agent for the Series A Preferred Stock, or such other successor entity as the Company may, in its sole discretion, appoint from time to time.
Unpaid Dividend means the Companys failure to declare and pay dividends (including PIK Dividends or cash dividends) for any calendar quarter on the applicable Dividend Payment Date for any reason, including but not limited to restrictions under the DGCL or imposed by federal or state banking regulations or as may be imposed in writing by the Companys primary federal or state banking regulators.
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provided, however, that if any such amendment, alteration or repeal described above would adversely affect one or more but not all series of preferred stock with like voting rights (including the Series A Preferred Stock for this purpose), then only the series affected and entitled to vote shall vote as a class in lieu of all such series of preferred stock.
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OS
0
OS
1
Where,
OS 0 = the number of shares of Common Stock outstanding immediately prior to Ex-Date for such dividend or distribution.
OS 1 = the sum of the number of shares of Common Stock outstanding immediately prior to the Ex-Date for such dividend or distribution plus the total number of shares of Common Stock constituting such dividend or distribution.
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For the purposes of this clause (i), the number of shares of Common Stock at the time outstanding shall not include treasury shares. If any dividend or distribution described in this clause (i) is declared but not so paid or made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to make such dividend or distribution, to such Conversion Price that would be in effect if such dividend or distribution had not been declared.
OS
0
OS
1
Where,
OS 0 = the number of shares of Common Stock outstanding immediately prior to the effective date of such share subdivision, split or combination.
OS 1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision, split or combination.
For the purposes of this clause (ii), the number of shares of Common Stock at the time outstanding shall not include treasury shares. If any subdivision, split or combination described in this clause (ii) is announced but the outstanding shares of Common Stock are not subdivided, split or combined, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to subdivide, split or combine the outstanding shares of Common Stock, to such Conversion Price that would be in effect if such subdivision, split or combination had not been announced.
SP
0
FMV
SP
0
Where,
SP 0 = the Current Market Price per share of Common Stock on such date.
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FMV = the fair market value of the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors.
In a spin-off, where the Company makes a distribution to all holders of shares of Common Stock consisting of capital stock of any class or series, or similar equity interests of, or relating to, a subsidiary or other business unit, the Conversion Price will be adjusted on the 15 th Trading Day after the effective date of the distribution by multiplying such Conversion Price in effect immediately prior to such 15 th Trading Day by the following fraction:
MP
0
MP
0
+
MP
S
Where,
MP 0 = the average of the Closing Prices of the Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution.
MP S = the average of the Closing Prices of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock over the first ten Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution, or, if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the capital stock or equity interests representing the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors.
In the event that such distribution described in this clause (iii) is not so paid or made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
SP
0
DIV
SP
0
Where,
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SP 0 = the Closing Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date.
DIV = the amount per share of Common Stock of the dividend or distribution, as determined pursuant to the following paragraph.
In the event that any distribution described in this clause (iv) is not so made, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay such distribution, to the Conversion Price which would then be in effect if such distribution had not been declared.
OS
0
x SP
0
AC + (SP
0
x
OS
1
)
Where,
SP 0 = the Closing Price per share of Common Stock on the Trading Day immediately succeeding the expiration of the tender or exchange offer.
OS 0 = the number of shares of Common Stock outstanding immediately prior to the expiration of the tender or exchange offer, including any shares validly tendered and not withdrawn.
OS 1 = the number of shares of Common Stock outstanding immediately after the expiration of the tender or exchange offer.
AC = the aggregate cash and fair market value of the other consideration payable in the tender or exchange offer, as determined by the Board of Directors.
In the event that the Company, or one of its subsidiaries, is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company, or such subsidiary, is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Price shall be readjusted to be such Conversion Price that would then be in effect if such tender offer or exchange offer had not been made.
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each share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, remain outstanding but shall become convertible, at the option of the Holders, into the kind of securities, cash and other property receivable in such Reorganization Event by the holder (excluding the counterparty to the Reorganization Event or an affiliate of such counterparty) of that number of shares of Common Stock into which the share of Series A Preferred Stock would then be convertible assuming that on the date such option is exercised the Applicable Regulatory Approval has been obtained and remains in effect and disregarding for these purposes Section 9(h) (such securities, cash and other property, the Exchange Property ).
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[Signature page follows]
A-21
IN WITNESS WHEREOF, the Company has caused this Designation to be signed by its duly authorized officer, on August 11, 2009.
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GUARANTY BANCORP |
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By: |
/s/ Paul W. Taylor |
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Name: Paul W. Taylor |
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Title: Executive Vice
President, Chief
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[Signature Page to Certificate of Designations]
Exhibit 10.1
AMENDMENT NO. 1 TO
INVESTMENT AGREEMENT
This AMENDMENT NO. 1 (this Amendment ) to that certain Investment Agreement, dated as of May 6, 2009 (the Investment Agreement ), by and among Guaranty Bancorp (the Company ), Patriot Financial Partners, L.P., Patriot Financial Partners Parallel, L.P., Relational Investors Mid-Cap Fund I, L.P., Relational Investors Mid-Cap Fund II, L.P., Castle Creek Capital Partners III, L.P., the other investors named on the signature pages hereto and the other investors that may become party thereto from time to time (collectively, the Investors ), is dated as of August 11, 2009, by and among the Company and the Investors. Capitalized terms used but otherwise defined in this Amendment shall have the respective meanings ascribed to them in the Investment Agreement.
WHERAS, the Company and the Investors previously entered into the Investment Agreement, pursuant to which the Investors will collectively purchase up to 60,000 shares of the Companys Convertible Preferred Stock for an aggregate Purchase Price of up to $60,000,000 upon the terms and subject to the conditions set forth in the Investment Agreement.
WHEREAS, the parties hereto wish to amend the Investment Agreement in certain respects.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the parties hereto hereby agree as follows:
Section 1. Amendments .
(a) The first paragraph of the Recitals to the Agreement is hereby amended and restated in its entirety to read as follows:
The Company intends to sell to each Investor, and such Investor intends to purchase from the Company, the number of shares of Series A Convertible Preferred Stock, par value $0.001 per share (the Convertible Preferred Stock ), set forth next to such Investors name on Annex A, to be designated with the terms, privileges and preferences set forth in the form of Certificate of Designations attached as Exhibit A hereto on the terms and subject to the conditions set forth herein.
(b) The Table of Contents is hereby amended by deleting the word Non-Cumulative from Exhibit A Form of Certificate of Designations for Series A Convertible Non-Cumulative Preferred Stock.
(c) Exhibit A to the Investment Agreement is hereby amended and restated in its entirety in the form attached as Exhibit A hereto.
(d) Section 6(j) of the Investment Agreement is hereby amended by adding at the end thereof prior to the period:
; provided however that no such consent shall be required to the extent that the Company or the Bank is required to raise additional capital under a regulatory or supervisory directive
(e) The proviso in the penultimate sentence of Section 9(a)(v) of the Investment Agreement is hereby amended by deleting the word and immediately preceding clause (C) thereof and replacing it with a comma, and adding the following at the end of the sentence:
and (D) notwithstanding any of the foregoing to the contrary, any committee of the Board of Directors shall have the right to withhold any information and to exclude any Observer from any meeting of such committee or portion thereof at any time and for no reason or any reason whatsoever
Section 2. Miscellaneous .
(a) Each party thereto hereby acknowledges and confirms that all references in the Investment Agreement to this Agreement shall be deemed to include the Investment Agreement as amended by this Amendment.
(b) Except as expressly provided herein, the Investment Agreement shall remain in full force and effect in accordance with the terms thereof.
(c) For the convenience of the parties hereto, this Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Executed signature pages to this Amendment may be delivered by facsimile and such facsimiles will be deemed as sufficient as if actual signature pages had been delivered.
(d) This Amendment shall be governed by, construed and enforced in accordance with the laws of the State of Colorado, without giving effect to conflicts of law principles or other principles that would require the application of any other law.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered as of the date first above written.
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GUARANTY BANCORP |
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By: |
/s/ Paul W. Taylor |
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Name: |
Paul W. Taylor |
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Title: |
Executive Vice
President, Chief
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PATRIOT FINANCIAL PARTNERS, L.P. |
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By: |
/s/ W. Kirk Wycoff |
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Name: |
W. Kirk Wycoff |
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Title: |
Managing Partner |
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PATRIOT FINANCIAL PARTNERS PARALLEL, L.P. |
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By: |
/s/ W. Kirk Wycoff |
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Name: |
W. Kirk Wycoff |
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Title: |
Managing Partner |
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CASTLE CREEK CAPITAL PARTNERS III, L.P. |
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By: |
/s/ John M. Eggemeyer, III |
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Name: |
John M. Eggemeyer, III |
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Title: |
Managing Member |
Amendment No. 1 to Investment Agreement
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RELATIONAL INVESTORS MID-CAP FUND I, L.P. |
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By: |
/s/ David H. Batchelder |
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Name: |
David H. Batchelder |
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Title: |
Principal |
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RELATIONAL INVESTORS MID-CAP FUND II, L.P. |
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By: |
/s/ David H. Batchelder |
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Name: |
David H. Batchelder |
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Title: |
Principal |
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CONTEXT BH EQUITY FUND II, L.P. |
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By: |
CCP BH II, L.P., its General Partner |
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By: |
BH CCPBH GP, LLC, its General Partner |
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By: |
BH Equity Research, LLC, its Managing Member |
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By: |
/s/ Robert Hendershott |
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Name: |
Robert Hendershott |
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Title: |
CEO |
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/s/ Theodore Janus |
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Theodore Janus |
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/s/ Bryan Bradford |
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Bryan Bradford |
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/s/ Bill Block |
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Bill Block |
Amendment No. 1 to Investment Agreement
EXHIBIT A
FORM OF CERTIFICATE OF DESIGNATIONS
Exhibit 99.1
FOR IMMEDIATE RELEASE:
Guaranty Bancorp Closes $59.1 Million Capital Raise and Appoints New Director
Denver, Colorado (August 11, 2009) Guaranty Bancorp (Nasdaq: GBNK) (the Company) announced that it consummated the previously announced private placement of mandatorily convertible Series A preferred stock. A total of 59,053 shares of Series A preferred stock were issued in this private placement for a total capital raise of $59.1 million. The primary investors include Patriot Financial Partners, L.P., Patriot Financial Partners Parallel, L.P., Relational Investors Mid-Cap Fund I, L.P., Relational Investors Mid-Cap Fund II, L.P. and Castle Creek Capital Partners III, L.P.
Additionally, the Company announced that, pursuant to the securities purchase agreement with Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P., Kirk Wycoff has been appointed to serve on its Board of Directors and both the Audit and Corporate Risk Committees of the Companys Board. Mr. Wycoff was also appointed to the Board of Directors of the Companys bank subsidiary, Guaranty Bank and Trust Company. Mr. Wycoff is currently a managing partner of Patriot Financial Partners, L.P. and Patriot Financial Partners Parallel, L.P., private equity funds headquartered in Philadelphia focused on investing in community banks and thrifts throughout the United States. Mr. Wycoff has more than 25 years of entrepreneurial banking experience. He also currently serves as Chairman of Continental Bank, based in the Philadelphia metropolitan area. From 2005 to 2007, Mr. Wycoff served as President and CEO of Continental Bank.
John Eggemeyer, Chairman of the Board, stated, We are very pleased and honored to have Kirk Wycoff join our Board. The addition of another Board member with a wealth of knowledge of, and extensive experience in, the banking industry further strengthens our Board. I, as well as each of the other members of the Board and management, welcome him and look forward to working with him.
Dan Quinn, President and CEO, stated, We are pleased to announce the closing of $59.1 million of capital. Prior to this capital issuance, the Company had an equity ratio-GAAP of 7.90% and a tangible equity ratio of 6.83% at June 30, 2009. This issuance of preferred stock significantly enhances the Companys capital position. Giving effect to this new capital, the equity ratio-GAAP and tangible equity ratio on a pro-forma basis at June 30, 2009 are 10.57% and 9.56%, respectively.
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The Companys and the bank subsidiarys actual and pro forma capital ratios at June 30, 2009 are presented in the table below:
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Actual
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Pro Forma
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Minimum
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Minimum
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Total Risk-Based Capital Ratio : |
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Consolidated |
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10.73 |
% |
13.79 |
% |
8.00 |
% |
N/A |
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Guaranty Bank and Trust Company (2) |
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10.71 |
% |
12.82 |
% |
8.00 |
% |
10.00 |
% |
Tier 1 Risk-Based Capital Ratio: |
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Consolidated |
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9.46 |
% |
10.04 |
% |
4.00 |
% |
N/A |
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Guaranty Bank and Trust Company (2) |
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9.44 |
% |
11.56 |
% |
4.00 |
% |
6.00 |
% |
Leverage Ratio: |
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Consolidated |
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8.96 |
% |
9.51 |
% |
4.00 |
% |
N/A |
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Guaranty Bank and Trust Company (2) |
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8.95 |
% |
10.95 |
% |
4.00 |
% |
5.00 |
% |
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Consolidated Equity Ratio -GAAP |
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7.90 |
% |
10.57 |
% |
N/A |
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N/A |
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Consolidated Tangible Equity Ratio (3) |
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6.83 |
% |
9.56 |
% |
N/A |
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N/A |
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(1) After issuance of $59,053,000 of Series A Preferred Stock, net of $1,000,000 of issuance costs. The Series A Convertible Preferred Stock is treated as a restricted core capital element for Tier 1 Capital purposes at the consolidated level. Restricted core elements are restricted to an amount not to exceed 25% of all core capital elements.
(2) Assumes that the Company will immediately contribute $40 million of additional capital to Guaranty Bank and Trust Company.
(3) The tangible equity ratio differs from the equity ratio GAAP in that intangible assets of $22.3 million are subtracted from both the numerator (actual total equity of $153,607,000 and pro forma total equity of $211,660,000 at June 30, 2009) and the denominator (actual total assets of $1,944,867,000 and pro forma total assets of $2,002,920,000 at June 30, 2009) of the ratio. The methodology of determining tangible equity may differ among companies.
About Guaranty Bancorp
Guaranty Bancorp is a bank holding company that operates 34 branches in Colorado through a single bank, Guaranty Bank and Trust Company. The bank provides banking and other financial services including real estate, construction, commercial and industrial, energy, consumer and agricultural loans throughout its targeted Colorado markets to consumers and small to medium-sized businesses, including the owners and employees of those businesses. The bank also provides trust services, including personal trust administration, estate settlement, investment management accounts and self-directed IRAs. More information about Guaranty Bancorp can be found at www.gbnk.com .
Forward-Looking Statements
Certain statements contained in this press release, including, without limitation, statements containing the words believes, anticipates, intends, expects, and words of similar import, constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the Companys actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such factors include, among others, the following: general economic and business conditions in those
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areas in which the Company operates; demographic changes; competition; fluctuations in interest rates; continued ability to attract and employ qualified personnel; costs and uncertainties related to the outcome of pending litigation; changes in business strategy or development plans; changes that occur in the securities markets; changes in governmental legislation or regulation; changes in credit quality; the availability of capital to fund the expansion of the Companys business; the failure to obtain approval to participate in the U.S. Treasurys Capital Purchase Program and, if such approval is obtained, the failure to complete the sale of preferred stock under such program; economic, political and global changes arising from natural disasters; the war on terrorism; conflicts in the Middle East; and additional Risk Factors referenced in the Companys most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission, as supplemented from time to time. When relying on forward-looking statements to make decisions with respect to the Company, investors and others are cautioned to consider these and other risks and uncertainties. The Company can give no assurance that any goal or plan or expectation set forth in forward-looking statements can be achieved and readers are cautioned not to place undue reliance on such statements, which speak only as of the date made. The forward-looking statements are made as of the date of this press release, and the Company does not intend, and assumes no obligation, to update the forward-looking statements or to update the reasons why actual results could differ from those projected in the forward-looking statements.
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