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
December 17,
2008
Date of Report
(Date of earliest event reported)
VIST
FINANCIAL CORP.
(Exact name of
registrant as specified in its charter)
Pennsylvania
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0-14555
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23-2354007
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(State or other
jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Ident. No.)
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1240
Broadcasting Road, Wyomissing, Pennsylvania
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19610
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(Address of
principal executive offices)
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(Zip Code)
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(610)
208-0966
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.
Entry
into Purchase Agreement
On December 19,
2008, VIST Financial Corp. (the
Company
) entered into a Letter
Agreement (the
Purchase Agreement
) with the United States
Department of the Treasury (
Treasury
), pursuant to which the Company
agreed to issue and sell (i) 25,000 shares of the Companys Fixed Rate
Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per
share (the
Series A Preferred Stock
), and (ii) a warrant
(the
Warrant
) to purchase 364,078 shares of the Companys common
stock, par value $5.00 per share (the
Common Stock
), for an aggregate
purchase price of $25,000,000 in cash.
The Purchase Agreement is attached as
Exhibit 10.1
hereto
and is incorporated herein by reference.
The Series A
Preferred Stock will qualify as Tier 1 capital and will pay cumulative
dividends at a rate of 5% per annum for the first five years, and
9% per annum thereafter. The Series A
Preferred Stock may be redeemed by the Company after three years. Prior to the
end of three years, the Series A Preferred Stock may be redeemed by the
Company only with proceeds from the sale of qualifying equity securities of the
Company (a
Qualified Equity Offering
).
The restrictions on redemption are set forth in the Certificate of
Designations described in
Item 5.03
below.
The Warrant has a 10-year
term and is immediately exercisable upon its issuance, with an exercise price,
subject to anti-dilution adjustments, equal to $10.30 per share of the Common
Stock. The Warrant is attached as
Exhibit 4.2
hereto and is incorporated herein by reference.
If the Company receives
aggregate gross cash proceeds of not less than $25,000,000 from Qualified
Equity Offerings on or prior to December 31, 2009, the number of shares of
Common Stock issuable pursuant to Treasurys exercise of the Warrant will be
reduced by one half of the original number of shares, taking into account all
adjustments, underlying the Warrant.
Pursuant to the Purchase Agreement, Treasury has agreed not to exercise
voting power with respect to any shares of Common Stock issued upon exercise of
the Warrant.
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. Upon the request of Treasury
at any time, the Company has agreed to promptly register the Series A
Preferred Stock, the Warrant, and the shares of Common Stock underlying the
Warrant (the
Warrant Shares
).
Neither the Series A Preferred Stock nor the Warrant will be
subject to any contractual restrictions on transfer, except that Treasury may
only transfer or exercise an aggregate of one-half of the Warrant Shares prior
to the earlier of the redemption of 100% of the shares of Series A
Preferred Stock and December 31, 2009.
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
the Emergency Economic Stabilization Act of 2008 (the
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, and the applicable executives have consented to the foregoing.
The foregoing description
of the Purchase Agreement and the Warrant and the transactions contemplated
thereunder does not purport to be complete and is qualified in its entirety by
reference to the Purchase Agreement and the Warrant, which are attached hereto
as
Exhibits 10.1
and
4.2
, respectively, and are incorporated
herein by reference.
Please note that the representations and warranties of each
party set forth in the Purchase Agreement have been made solely for the benefit
of the other party to the Purchase Agreement.
In addition, such representations and warranties (i) have been
qualified by confidential disclosures made to the other party in connection
with the Purchase Agreement, (ii) are subject to materiality
qualifications contained in the Purchase Agreement which may differ from what
may be viewed as material by investors, (iii) were made only as of the
date of the Purchase Agreement or such other date as is specified in the
Purchase Agreement, and (iv) may have been included in the Purchase
Agreement for the purpose of allocating risk between the Company and Treasury
rather than establishing matters as facts.
Accordingly, the Purchase Agreement is included with this filing only to
provide investors with information regarding the terms of the Purchase
Agreement, and not to provide investors with any other factual information
regarding the parties or their respective businesses. The Purchase Agreement should not be read
alone, but should instead be read in conjunction with the other information
regarding the Company, as well as in the public disclosure documents that the
Company files with the Securities and Exchange Commission from time to time.
2
Amendment
to Rights Agreement
On December 17,
2008, the Company and American Stock Transfer & Trust Company, as the
rights agent (the
Rights Agent
), entered into the Amendment to
the Amended and Restated Rights Agreement, dated as of December 17, 2008
(the
Rights Agreement Amendment
).
The Rights Agreement Amendment provides that the definition of Acquiring Person,
as used in the Amended and Restated Rights Agreement, dated as of March 3,
2008, shall not include Treasury and be inapplicable to the Purchase Agreement
and the Warrant the consummations of the transactions contemplated thereby,
including the exercise of the Warrant by Treasury in accordance with its
terms. The Rights Agreement Amendment
provides that the definition of Adverse Person, as used in the Amended and
Restated Rights Agreement, dated as of March 3, 2008, shall not include
Treasury and be inapplicable to the Purchase Agreement and the Warrant the
consummations of the transactions contemplated thereby, including the exercise
of the Warrant by Treasury in accordance with its terms. The Rights Agreement Amendment is attached as
Exhibit 4.3
hereto and is incorporated herein by reference. The above summary is qualified in its
entirety by reference to the full text of the Rights Agreement Amendment filed
as
Exhibit 4.3
.
Item 3.02
Unregistered
Sales of Equity Securities.
The information set forth
under Item 1.01 Entry into a Material Definitive Agreement of this Current
Report on Form 8-K is incorporated by reference into this
Item 3.02
.
Item 3.03
Material
Modification to Rights of Security Holders.
Upon issuance of the Series A
Preferred Stock on December 19, 2008, the ability of the Company to
declare or pay dividends or distributions on, or purchase, redeem or otherwise
acquire for consideration, shares of its Junior Stock (as defined below) and
Parity Stock (as defined below) will be subject to restrictions, including the
Companys restriction against increasing dividends from the last quarterly cash
dividend per share ($0.10) declared on the Common Stock prior to October 14,
2008. The redemption, purchase or other
acquisition of trust preferred securities of the Company or its affiliates also
will be restricted. These restrictions
will terminate on the earlier of (a) the third anniversary of the date of
issuance of the Series A Preferred Stock and (b) the date on which
the Series A Preferred Stock has been redeemed in whole or Treasury has
transferred all of the Series A Preferred Stock to third parties. The restrictions described in this paragraph
are set forth in the Purchase Agreement.
In addition, pursuant to
the Certificate of Designations, the ability of the Company to declare or pay
dividends or distributions on, or repurchase, redeem or otherwise acquire for
consideration, shares of its Junior Stock and Parity Stock will be subject to
restrictions in the event that the Company fails to declare and pay full
dividends (or declare and set aside a sum sufficient for payment thereof) on
its Series A Preferred Stock. These
restrictions are set forth in the Certificate of Designations described in
Item 5.03
.
Junior Stock
means the Common Stock and any other class or series of stock of the Company
the terms of which expressly provide that it ranks junior to the Series A
Preferred Stock as to dividend rights and/or rights on liquidation, dissolution
or winding up of the Company.
Parity
Stock
means any class or series of stock of the Company the terms of which
do not expressly provide that such class or series will rank senior or junior
to the Series A Preferred Stock as to dividend rights and/or rights on
liquidation, dissolution or winding up of the Company (in each case without
regard to whether dividends accrue cumulatively or non-cumulatively).
As indicated in under Item
1.01 Entry into a Material Definitive Agreement of this Current Report on Form 8-K,
the Company and the Rights Agent have executed the Rights Agreement Amendment,
which amends Amended and Restated Rights Agreement, dated as of March 3,
2008. The Rights Agreement Amendment
modifies certain rights of holders of the stock purchase rights issued under
the Amended and Restated Rights Agreement, dated as of March 3, 2008, and
registered pursuant to Section 12(g) of the Securities Exchange Act
of 1934. The description of such
modifications set forth under Item 1.01 Entry into a Material Definitive
Agreement of this Current Report on Form 8-K is incorporated by reference
into this
Item 3.03
.
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.
Amendment
to Articles of Incorporation
On December 17,
2008, the shareholders of the Company approved an amendment (the
Articles
Amendment
) to ARTICLE
3
FIFTH of the Companys
articles of incorporation to authorize the issuance by the Company of up to
1,000,000 shares of preferred stock. The
preferred stock may be issued by the Companys board of directors in one or
more series, from time to time, with each such series to consist of such number
of shares and to have such voting powers, designations, preferences, rights,
qualifications, limitations and restrictions as determined by the board of directors.
The Articles Amendment
was approved by the board of directors on October 21, 2008, subject to
shareholder approval, and was effective upon approval by the Companys
shareholders and the filing of the Articles Amendment with the Secretary of
State of the Commonwealth of Pennsylvania on December 17, 2008. The full text of the Articles Amendment is
attached as
Exhibit 3.1
to this Current Report on Form 8-K and
is incorporated herein by this reference.
The above summary is qualified in its entirety by reference to the full
text of the Articles Amendment filed as
Exhibit 3.1
.
Filing
of Certificate of Designation
On December 17,
2008, the Company filed a Statement with Respect to Shares (the
Certificate
of Designations
) with the Secretary of State of the Commonwealth of
Pennsylvania for the purpose of amending its articles of incorporation to fix
the designations, preferences, limitations and relative rights of the Series A
Preferred Stock. The Series A
Preferred Stock has a liquidation preference of $1,000 per share. The Certificate of Designations is attached
hereto as
Exhibit 3.2
and is incorporated by reference herein. The above summary is qualified in its
entirety by reference to the full text of the Certificate of Designations filed
as
Exhibit 3.2
.
Item 8.01
Other
Events.
On December 19,
2008, the Company issued a press release announcing that it had completed the
sale to Treasury of 25,000 shares of the Companys Series A Preferred
Stock and the Warrant for an aggregate purchase price of $25,000,000 in
cash. A copy of the press release is
attached hereto as
Exhibit 99.1
and is incorporated herein by
reference.
Item 9.01
Financial
Statements and Exhibits.
(d)
Exhibits:
3.1
Articles
of Amendment to Articles of Incorporation of VIST Financial Corp.,
effective as of December 17, 2008.
3.2
Statement
with Respect to Shares for the Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, par value $0.01 per share, of VIST Financial Corp.
4.1
Form of
Certificate for Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
par value $0.01 per share, of VIST Financial Corp.
4.2
Warrant,
dated December 19, 2008, to purchase 364,078 shares of common stock,
par value $5.00 per share, of VIST Financial Corp.
4.3
Amendment
to the Amended and Restated Rights Agreement, dated as of December 17, 2008,
between VIST Financial Corp. and American Stock Transfer & Trust
Company, as the rights agent.
10.1
Letter
Agreement, dated December 19, 2008, between VIST Financial Corp. and
the United States Department of the Treasury, with respect to the issuance and
sale of the Series A Preferred Stock and the Warrant.
99.1
Press
release, dated December 19, 2008, of VIST Financial Corp.
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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VIST FINANCIAL CORP.
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Dated:
December 23, 2008
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By:
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/s/ Edward C.
Barrett
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Edward C.
Barrett
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Executive
Vice President and
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Chief
Financial Officer
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4
EXHIBIT INDEX
Exhibit Number
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Description
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3.1
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Articles of Amendment
to Articles of Incorporation of VIST Financial Corp., effective as of
December 17, 2008
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3.2
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Statement with Respect
to Shares for the Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, par value $0.01 per share, of VIST Financial Corp.
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4.1
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Form of
Certificate for Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, par value $0.01 per share, of VIST Financial Corp.
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4.2
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Warrant, dated
December 19, 2008, to purchase 364,078 shares of common stock, par
value $5.00 per share, of VIST Financial Corp.
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4.3
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Amendment to the
Amended and Restated Rights Agreement, dated as of December 17, 2008,
between VIST Financial Corp. and American Stock Transfer &
Trust Company, as the rights agent
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10.1
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Letter Agreement, dated
December 19, 2008, between VIST Financial Corp. and the United
States Department of the Treasury, with respect to the issuance and sale of
the Series A Preferred Stock and the Warrant
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99.1
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Press release, dated
December 19, 2008, of VIST Financial Corp.
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5
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