EXHIBIT 4.5
MCB STATUTORY TRUST I
MCB FINANCIAL CORPORATION
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among MCB
Statutory Trust I (the "Trust"), a statutory trust created under the Connecticut
Statutory Trust Act (Chapter 615 of Title 34 of the Connecticut General
Statutes, Section 500, ET seq.), MCB Financial Corporation, a California
corporation, with its principal offices located at 1248 Fifth Avenue, San
Rafael, CA 94901 (the "Company" and, collectively with the Trust, the
"Offerors"), and Preferred Term Securities, Ltd. (the "Purchaser").
RECITALS:
A. The Trust desires to issue 3,000 of its 10.60% Capital
Securities (the "Capital Securities"), liquidation amount $1,000 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration") by and among the Company, State Street
Bank and Trust Company of Connecticut, National Association, the administrators
named therein, and the several holders (as defined therein), which Capital
Securities are to be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the terms of a
Guarantee Agreement between the Company and State Street Bank and Trust Company
of Connecticut, National Association, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will
be combined with the proceeds from the sale by the Trust to the Company of its
common securities, and will be used by the Trust to purchase an equivalent
amount of 10.60% Junior Subordinated Deferrable Interest Debentures of the
Company (the "Debt Securities") to be issued by the Company pursuant to an
indenture to be executed by the Company and State Street Bank and Trust Company
of Connecticut, National Association, as trustee (the "Indenture"); and
C. In consideration of the premises and the mutual represen-
tations and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, the Purchaser
hereby agrees to purchase from the Trust 10.60% Capital Securities at a price
equal to $1,000 per Capital Security (the "Purchase Price") and the Trust agrees
to sell such Capital Securities to the Purchaser for said Purchase Price. The
rights and preferences of the Capital Securities are set forth in the
Declaration. The Purchase Price is payable in immediately available funds on
September 7, 2000 (the "Closing Date"). The Offerors shall provide the Purchaser
wire transfer instructions no later than 5 days prior to the Closing Date.
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1.2. The certificate for the Capital Securities shall be delivered by the
Trust on the Closing Date to the Purchaser or its designee.
1.3. The Agreement, dated August 31, 2000 (the "Placement Agreement"),
among the Offerors and the Placement Agents identified therein includes certain
representations and warranties, covenants and conditions to closing and certain
other matters governing the Offering. The Placement Agreement is hereby
incorporated by reference into this Agreement and the Purchaser shall be
entitled to all the benefits under the Placement Agreement and shall be entitled
to enforce such Placement Agreement as fully as if the Purchaser were a party to
such Placement Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that neither the Capital
Securities, the Debt Securities nor the Guarantee have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable securities law, are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act, and may not be
offered, sold, pledged or otherwise transferred by the Purchaser except in
compliance with the registration requirements of the Securities Act or any other
applicable securities laws, pursuant to an exemption therefrom or in a
transaction not subject thereto.
2.2. The Purchaser represents, warrants and certifies that it is not a
"U.S. person" as such term is defined in Rule 902 under the Securities Act and
that the offer and sale of Capital Securities to the Purchaser constitutes an
"offshore transaction" under Regulation S of the Securities Act.
2.3. The Purchaser represents and warrants that it is purchasing the
Capital Securities for its own account, for investment, and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act or
under Rule 144A or any other exemption from registration available under the
Securities Act or any other securities law.
2.4. The Purchaser has full power and authority to execute and deliver this
Agreement, to make the representations and warranties specified herein, and to
consummate the transactions contemplated herein and it has full right and power
to subscribe for Capital Securities and perform its obligations pursuant to this
Agreement.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, or delivered by hand against written receipt therefor, or by
facsimile transmission and confirmed by telephone, to the following addresses,
or such other address as may be furnished to the other parties as herein
provided:
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To the Offerors: MCB Financial Corporation
1248 Fifth Avenue
San Rafael, CA 94901
Attention: Pat Phelan
Fax: (415) 721-4808
To the Purchaser: Preferred Term Securities, Ltd.
c/o QSPV Limited
P.O. Box 1093 GT
Queensgate House
South Church Street
George Town, Grand Cayman
Cayman Islands, British West Indies
Attention: The Directors
Fax: (345) 945-7100
Unless otherwise expressly provided herein, notices shall be deemed to
have been given on the date of mailing, except notice of change of address,
which shall be deemed to have been given when received.
3.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3 Upon the execution and delivery of this Agreement by the Purchaser,
this Agreement shall become a binding obligation of the Purchaser with respect
to the purchase of Capital Securities as herein provided.
3.4 NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY
OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
3.6 This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, I have set my hand this 7th day of September, 2000.
PREFERRED TERM SECURITIES, LTD.
By:
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Print Name:
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Title:
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to
and accepted as of September 7, 2000.
MCB FINANCIAL CORPORATION
By:
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Name:
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Title:
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MCB STATUTORY TRUST I
By:
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Name:
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Title: Administrator
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