Form 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 23, 2008
GREEN BANKSHARES, INC.
(Exact name of registrant as specified in charter)
|
|
|
|
|
Tennessee
|
|
0-14289
|
|
62-1222567 |
|
(State or other jurisdiction
of incorporation)
|
|
(Commission
File Number)
|
|
(I.R.S. Employer
Identification No.) |
|
|
|
100 North Main Street, Greeneville, Tennessee
|
|
37743-4992 |
|
(Address of principal executive offices)
|
|
(Zip Code) |
Registrants telephone number, including area code: (423) 639-5111
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 (see General
Instruction A.2. below):
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))
TABLE OF CONTENTS
Item 1.01. Entry into a Material Definitive Agreement.
On December 23, 2008, as part of the Capital Purchase Program established by the U.S.
Department of the Treasury (Treasury) under the Emergency Economic Stabilization Act of 2008 (the
EESA), Green Bankshares, Inc. (the Company) entered into a Letter Agreement (including the
Securities Purchase AgreementStandard Terms incorporated by reference therein, the Purchase
Agreement) with Treasury dated December 23, 2008 pursuant to which the Company issued and sold to
Treasury (i) 72,278 shares of the Companys Fixed Rate Cumulative Perpetual Preferred Stock, Series
A, having a liquidation preference of $1,000 per share (the Series A Preferred Stock), and (ii) a
ten-year warrant to purchase up to 635,504 shares of the Companys common stock, par value $2.00
per share (Common Stock), at an initial exercise price of $17.06 per share (the Warrant), for
an aggregate purchase price of $72,278,000 in cash.
The Series A Preferred Stock will qualify as Tier 1 capital and will pay cumulative dividends
at a rate of 5% per annum for the first five years following issuance, and 9% per annum thereafter.
Dividends are payable on the Series A Preferred Stock quarterly and are payable on February 15,
May 15, August 15 and November 15 of each year. If the Company fails to pay a total of six
dividend payments on the Series A Preferred Stock, whether or not consecutive, holders of the
Series A Preferred Stock will have the right to elect two directors to the Companys board of
directors until the Company has paid all such dividends that it had failed to pay.
The Series A Preferred Stock has no maturity date and ranks senior to the Common Stock with
respect to the payment of dividends and distributions and amounts payable upon liquidation,
dissolution and winding up of the Company. The Series A Preferred Stock generally is non-voting.
The Series A Preferred Stock may be redeemed by the Company following February 15, 2012.
Prior to that date, the Series A Preferred Stock may be redeemed in whole or in part, only with the
proceeds of a Qualified Equity Offering (as defined below) that results in proceeds to the Company
of not less than $18,069,500. A Qualified Equity Offering is the sale by the Company for cash,
following the date of issuance of the Series A Preferred Stock, of Common Stock or perpetual
preferred stock that qualifies as Tier 1 capital under the risk-based capital guidelines of the
Board of Governors of the Federal Reserve System. Any redemption of the Series A Preferred Stock,
whether before or after February 15, 2012, is subject to the consent of the Board of Governors of
the Federal Reserve System.
Prior to December 23, 2011, unless the Company has redeemed the Series A Preferred Stock or
Treasury has transferred the Series A Preferred Stock to a third party, the consent of Treasury
will be required for the Company to (1) declare or pay any dividend or make any distribution on the
Common Stock (other than regular quarterly cash dividends of not more than $0.13 per share of
Common Stock) or (2) redeem, purchase or acquire any shares of Common Stock or other equity or
capital securities, other than in connection with benefit plans consistent with past practice and
certain other circumstances specified in the Purchase Agreement.
The Series A Preferred Stock and the Warrant were issued in a private placement exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933, as amended. The Company has
agreed to register the resale of the Series A Preferred Stock and the Warrant, and the issuance of
shares of Common Stock upon exercise of 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 nor the Warrant are subject to any contractual restrictions on transfer, except
that Treasury may only transfer or exercise an aggregate of one-half of the Warrant Shares prior to
the earlier of (i) the date on which the Company has received aggregate gross proceeds of not less
than $18,069,500 from one or more Qualified
Equity Offerings and (ii) December 31, 2009. The Warrant is immediately exercisable and the
exercise price and number of Warrant Shares issuable upon exercise of the Warrant is subject to
anti-dilution and adjustment provisions.
In the Purchase Agreement, the Company agreed that, until such time as Treasury ceases to own
any debt or equity securities of the Company acquired pursuant to the Purchase Agreement, the
Company will take all necessary action to ensure that its benefit plans with respect to its senior
executive officers comply with Section 111(b) of EESA as implemented by any guidance or regulation
under the EESA that has been issued and is in effect as of the date of issuance of the Series A
Preferred Stock and the Warrant, and has agreed to not adopt any benefit plans with respect to, or
which covers, its senior executive officers that do not comply with the EESA.
This description of the Purchase Agreement and the Warrant is a summary and does not purport
to be a complete description of all of the terms of the Purchase Agreement and the Warrant, and is
qualified in its entirety by reference to the Purchase Agreement and the Warrant, filed herewith as
Exhibit 10.1 and Exhibit 4.2, respectively.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 Entry into a Material Definitive Agreement above with
respect to the issuance and sale of the Series A Preferred Stock and the Warrant is incorporated by
reference herein as if fully set forth herein.
Item 3.03. Material Modification to the Rights of Security Holders.
Prior to December 23, 2011, unless the Company has redeemed the Series A Preferred Stock or
Treasury has transferred the Series A Preferred Stock to a third party, the consent of Treasury
will be required for the Company to (1) declare or pay any dividend or make any distribution on the
Common Stock (other than regular quarterly cash dividends of not more than $0.13 per share of
Common Stock) or (2) redeem, purchase or acquire any shares of the Common Stock or other equity or
capital securities, other than in connection with benefit plans consistent with past practice and
certain other circumstances specified in the Purchase Agreement.
In addition, as set forth in the Articles of Amendment to the Companys Charter filed with the
Secretary of State of the State of Tennessee on December 23, 2008 (the Articles of Amendment), in
which the rights and preferences of the Series A Preferred Stock are set forth, the ability of the
Company to declare or pay dividends or distributions on, or repurchase, redeem or otherwise acquire
for consideration, shares of Common Stock will be subject to restrictions, including the Companys
restriction against increasing dividends from the last quarterly cash dividend per share ($0.13)
declared on the Common Stock prior to December 23, 2008, 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 Articles of Amendment
described in more detail in Item 5.03 below.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory 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. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
December 19, 2008, the Company filed with the Secretary of State of the State of Tennessee
Articles of Amendment to the Companys Charter pursuant to which
subsection (c) to Article 6 has
been added to the Companys Charter in which 1,000,000 shares of black-check preferred stock have
been authorized for issuance by the Company. On December 19, 2008, the Company filed with the
Secretary of State of the State of Tennessee Articles of Amendment to the Companys Charter
pursuant to which, effective as of 8:00 a.m. Central time on
December 23, 2008, subsection (d) to Article 6 the designations, preferences, limitations and
relative rights of the Series A Preferred Stock is set forth. A copy of the Articles of Amendment
to the Companys Charter establishing 1,000,000 shares of blank-check preferred stock is filed
herewith as Exhibit 3.1 and is incorporated by reference into this Item 5.03. A copy of the
Articles of Amendment to the Companys Charter establishing the Series A Preferred Stock is filed
herewith as Exhibit 3.2 and is incorporated by reference into this Item 5.03.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
|
|
|
3.1
|
|
Articles of Amendment to the Charter of Green Bankshares, Inc. |
|
|
|
3.2
|
|
Articles of Amendment to the Charter of Green Bankshares, Inc. |
|
|
|
4.1
|
|
Form of Certificate for the Series A Preferred Stock. |
|
|
|
4.2
|
|
Warrant for Purchase of Shares of Common Stock dated December 23, 2008. |
|
|
|
10.1
|
|
Letter Agreement, dated December 23, 2008, between the Company and the United States
Department of the Treasury, including Securities Purchase Agreement Standard Terms, with respect
to the issuance and sale of the Series A Preferred Stock and the Warrant. |
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.
|
|
|
|
|
|
GREEN BANKSHARES, INC.
|
|
|
By: |
/s/ James E. Adams
|
|
|
|
Name: |
James E. Adams |
|
|
|
Title: |
Executive Vice President and
Chief Financial Officer |
|
|
Date: December 23, 2008
EXHIBIT INDEX
|
|
|
Exhibit
No. |
|
Description |
|
|
|
3.1
|
|
Articles of Amendment to the Charter of Green Bankshares, Inc. |
|
|
|
3.2
|
|
Articles of Amendment to the Charter of Green Bankshares, Inc. |
|
|
|
4.1
|
|
Form of Certificate for the Series A Preferred Stock. |
|
|
|
4.2
|
|
Warrant for Purchase of Shares of Common Stock dated December 23, 2008. |
|
|
|
10.1
|
|
Letter Agreement, dated December 23, 2008, between the Company and the
United States Department of the Treasury, including Securities
Purchase Agreement Standard Terms, with respect to the issuance and
sale of the Series A Preferred Stock and the Warrant. |