form8k-96785_fbnc.htm
As filed
with the Securities and Exchange Commission on January 12, 2009
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):
January 7,
2009
FIRST
BANCORP
(Exact
name of registrant as specified in its charter)
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North
Carolina
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0-15572
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56-1421916
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(State
of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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341
North Main Street
Troy,
North Carolina 27371-0508
(Address
of principal executive offices)
(910)
576-6171
(Registrant’s
telephone number, including area code)
Not Applicable
(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:
¨ Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE
AGREEMENT.
On
January 9, 2009, First Bancorp (the “Registrant”) entered into a Letter
Agreement (the “Purchase Agreement”) with the United States Department of the
Treasury (“Treasury”), pursuant to which the Registrant agreed to issue and sell
(i) 65,000 shares of the Registrant’s Fixed Rate Cumulative Perpetual
Preferred Stock, Series A (the “Series A Preferred Stock”) and (ii) a
warrant (the “Warrant”) to purchase 616,308 shares of the Registrant’s common
stock, no par value (the “Common Stock”), for an aggregate purchase price of
$65,000,000 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 Registrant after three years. Prior to the end of three years, the Series A
Preferred Stock may be redeemed by the Registrant only with proceeds from the
sale of qualifying equity securities of the Registrant (a “Qualified Equity
Offering”). The restrictions on redemption are set forth in the Articles of
Amendment to the Articles of Incorporation of the Registrant (the “Articles of
Amendment”) 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 $15.82
per share of the Common Stock. The Warrant is attached as Exhibit 4.2 hereto and
is incorporated herein by reference.
If the
Registrant receives aggregate gross cash proceeds of not less than $65,000,000
from Qualified Equity Offerings on or prior to December 31, 2009, the
number of shares of Common Stock issuable pursuant to Treasury’s 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. The Registrant has agreed to register the Series A
Preferred Stock, the Warrant, and the shares of Common Stock underlying the
Warrant (the “Warrant Shares”) as soon as practicable after the date of the
issuance of the Series A Preferred Stock and the Warrant. Neither the Series A
Preferred Stock 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 Registrant agreed that, until such time as Treasury
ceases to own any debt or equity securities of the Registrant acquired pursuant
to the Purchase Agreement, the Registrant 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.
ITEM 3.02. UNREGISTERED SALES OF EQUITY
SECURITIES.
The
information set forth under “Item 1.01 Entry into a Material Definitive
Agreement” is incorporated by reference into this Item 3.02.
ITEM 3.03. MATERIAL MODIFICATION TO RIGHTS OF
SECURITYHOLDERS.
Upon
issuance of the Series A Preferred Stock on January 9, 2009, the ability of the
Registrant to declare or pay dividends or distributions on, or purchase, redeem
or otherwise acquire for consideration, shares of its Common Stock will be
subject to restrictions, including the Registrant’s restriction against
increasing dividends from the last quarterly cash dividend declared on the
Common Stock prior to October 14, 2008 ($0.19 per share). 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 Articles of Amendment, the ability of the Registrant
to declare or pay dividends or distributions on, or repurchase, redeem or
otherwise acquire for consideration, shares of its Common Stock will be subject
to restrictions in the event that the Registrant 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 Item 5.03.
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 in the last paragraph
under “Item 1.01 Entry into a Material Definitive Agreement” is incorporated by
reference into this Item 5.02.
In
addition, in connection with the issuance of the Series A Preferred Stock,
certain executive officers of the Registrant signed (a) a waiver, in the form of
Exhibit 10.2, voluntarily waiving any claim against the Treasury or the
Registrant for any changes to such officer’s compensation or benefits that are
required to comply with the regulations issued by the Treasury and (b) a letter
agreement with the Registrant, in the form of Exhibit 10.3, in which such
officer agreed to be subject to the limitations and restrictions on compensation
imposed by Section 111(b) of EESA as implemented by the guidance and regulation
under EESA that has been issued and was in effect as of the date of issuance of
the Series A Preferred Stock. The officers who signed these documents
consisted of: Jerry L. Ocheltree, President and Chief Executive Officer; Anna G.
Hollers, Executive Vice President, Chief Operating Officer and Secretary; Teresa
C. Nixon, Executive Vice President & Chief Lending Officer; Eric P. Credle,
Executive Vice President and Chief Financial Officer; and John F. Burns,
Executive Vice President.
ITEM 5.03. AMENDMENT TO
ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR.
Following
shareholder approval of an amendment to the Registrant’s Articles of
Incorporation to authorize the Registrant to issue 5,000,000 shares of preferred
stock, as described in the Registrant’s definitive proxy statement dated
November 21, 2008 filed with the Securities and Exchange Commission on November
21, 2008, on December 22, 2008 the Registrant filed Articles of Amendment to its
Articles of Incorporation with the North Carolina Secretary of State for the
purpose of amending its Articles of Incorporation to authorize the Registrant to
issue 5,000,000 shares of preferred stock, no par value, which shares of
preferred stock may be established by the Board of Directors of the Registrant
from time to time in one or more classes or series within a
class. These Articles of Amendment are attached hereto as Exhibit 3.1
and are incorporated by reference herein.
On
January 7, 2009, the Registrant filed Articles of Amendment to its Articles of
Incorporation with the North Carolina Secretary of State 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 $1,000.00 per share. The
Articles of Amendment are attached hereto as Exhibit 3.2 and are incorporated by
reference herein.
ITEM 9.01. FINANCIAL STATEMENTS
AND EXHIBITS.
(d) Exhibits.
The
following exhibits are filed herewith:
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EXHIBIT NO.
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DESCRIPTION
OF EXHIBIT
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3.1
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Articles
of Amendment to Articles of Incorporation (filed December 22,
2008)
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3.2
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Articles
of Amendment to Articles of Incorporation (filed January 7,
2009)
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4.1
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Form of Certificate
for the Series A Preferred Stock
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4.2
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Warrant
for Purchase of Shares of Common Stock
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10.1
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Letter
Agreement, dated January 9, 2009, between the Registrant and United States
Department of the Treasury, with respect to the issuance and sale of the
Series A Preferred Stock and the Warrant
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10.2
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Form
of Waiver by Senior Officers (TARP Capital Purchase
Program)
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10.3
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Form
of Letter Agreement by Senior Officers (TARP Capital Purchase
Program)
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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FIRST
BANCORP
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By: /s/ Jerry L.
Ocheltree
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Name: Jerry
L. Ocheltree
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Title: President
& CEO
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Dated: January
13, 2009
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