Hanmi Financial
Corporation
Up to 100,000,000 Shares of
Common Stock, $0.001 par value per share
PLACEMENT AGENCY
AGREEMENT
Cappello
Capital Corp.
As Placement Agent
100 Wilshire Boulevard
Suite 1200
Santa Monica, California 90401
Hanmi Financial
Corporation, a Delaware corporation (the “ Company
”), proposes, subject to the terms and conditions stated in
this Placement Agency Agreement (this “ Agreement
”) and the Subscription Agreement in the form of
Exhibit A attached hereto (the “ Subscription
Agreement ”) to be entered into with the investors
identified therein (each, an “ Investor ” and
collectively, the “ Investors ”), to issue and
sell up to an aggregate of 100,000,000 shares (the “
Shares ”) of the Company’s common stock, par
value $0.001 per share (the “ Common Stock ”),
including 50,000,000 shares of Common Stock initially in the best
efforts public offering plus that number of shares of Common Stock
not subscribed for in the rights offering to be conducted by the
Company concurrently with the best efforts public offering, which
could be up to 50,000,000 shares of Common Stock depending on the
number of shares subscribed for in the rights offering by the
Company’s stockholders (collectively, the
“Offering”). The Company hereby confirms its agreement
with Cappello Capital Corp. (the “ Placement Agent
”) to act as its exclusive Placement Agent in connection with
the offer and sale of the Shares as set forth below. The Shares are
more fully described in the Prospectus (as defined
below).
1.
Agreement to Act as Placement Agent; Delivery and Payment .
On the basis of the representations, warranties and agreements of
the Company herein contained, and subject to the terms and
conditions set forth in this Agreement:
(a) The
Company hereby engages the Placement Agent, as the exclusive agent
of the Company, to, on commercially reasonable best efforts basis,
solicit offers to purchase Shares from the Company on the terms and
subject to the conditions set forth in the Subscription Agreement
and Prospectus. The Placement Agent shall use commercially
reasonable best efforts to assist the Company in obtaining
performance by each Investor of the purchase the Shares, but the
Placement Agent shall not, except as otherwise provided in this
Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. Under no circumstances
will the Placement Agent or any of its affiliates be obligated to
underwrite or
purchase any of
the Shares for its own account or otherwise provide any financing.
The Placement Agent shall act solely as the Company’s agent
and not as principal. The Placement Agent shall not have any
authority to bind the Company with respect to any prospective offer
to purchase Shares and the Company shall have the sole right to
accept offers to purchase Shares and may reject any such offer, in
whole or in part. The Placement Agent shall have the right, in its
discretion reasonably exercised, with consent of the Company to
reject any offer to purchase the Shares received by it, in whole or
in part, and any such rejection shall not be deemed a breach of
this Agreement.
(b) As
compensation for services rendered by the Placement Agent
hereunder, on the Closing Date (as defined below), the Company
shall pay or cause to be paid to the Placement Agent by wire
transfer of immediately available funds to an account or accounts
designated by the Placement Agent, the cash compensation and the
issuance of certain warrants (collectively, the “
Compensation ”) agreed upon by and between the Company
and the Placement Agent specifically relating to the Placement
Agent’s offer and sale of the Shares pursuant to that certain
Engagement Letter dated January 15, 2010 and as amended on
May 20, 2010 (the “ Engagement Letter
”).
(c) The
Shares are being sold to the Investors at a price of $1.20 per
share (the “ Purchase Price ”) as set forth on
the cover page of the Prospectus. The purchases of Shares by the
Investors shall be evidenced by the execution of the Subscription
Agreement by each of the parties thereto in the form attached
hereto as Exhibit A .
(d) Prior
to the earlier of (i) the date on which this Agreement is
terminated and (ii) the Closing Date, the Company shall not,
without the prior written consent of the Placement Agent, solicit
or accept offers to purchase Shares of the Company otherwise than
through the Placement Agent in accordance herewith.
(e) No
Shares which the Company has agreed to sell pursuant to this
Agreement and the Subscription Agreement shall be deemed to have
been purchased and paid for, or sold by the Company, until such
Shares shall have been delivered to the Investor purchasing such
Shares against payment therefor by such Investor. If the Company
shall default in its obligations to deliver Shares to an Investor
whose offer it has accepted, the Company shall indemnify and hold
the Placement Agent harmless against any loss, claim, damage or
liability directly or indirectly arising from or as a result of the
default by the Company in accordance with the procedures set forth
in Section 6(c) hereof.
(f) Payment
of the purchase price for, and delivery of the Shares shall be made
at a closing (the “ Closing ”) at the offices of
Manatt, Phelps & Phillips, LLP, counsel to the Company, at
11355 West Olympic Boulevard, Los Angeles, California 90064, at
10:00 a.m., local time, on the third business day after the
Escrow Release Date (as defined below) or at such other time and
date as the Placement Agent and the Company shall mutually
determine (such date of payment and delivery being herein referred
to as the “ Closing Date ”). Escrow Release Date
shall mean for purposes of this Agreement, the earlier of
(i) when the Company has received total subscriptions in the
Offering for at least 87,500,000 of the offered shares,
representing $105,000,000 in gross proceeds to the Company, or
(ii) the closing of the transaction with Woori Finance
Holdings, Ltd., (“ Woori ”) pursuant to that
certain Securities
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Purchase
Agreement by and between the Company and Woori dated May 25,
2010 (the “ Woori SPA ”). Unless otherwise
specified in the applicable Subscription Agreement, the Shares will
be settled through the facilities of The Depository Trust
Company’s DWAC system. Subject to the terms hereof, payment
of the purchase price for the Shares shall be made to the Company
in the manner set forth below by Federal Funds wire transfer to an
account designated by the Company, against delivery of the Shares
to such persons and shall be registered in the name or names and
shall be in such denominations as the Investors may request at
least two business day before the Closing Date. Payment of the
purchase price for the Shares to be purchased by Investors shall be
made by such Investors directly to the Company. Subject to the
terms and conditions hereof, on the Closing Date, the Company shall
pay to the Placement Agent the cash portion of the Compensation,
issue the warrants that are a part of the Compensation and
reimburse the Placement Agent for the amount of expenses for which
such Placement Agent is entitled to reimbursement, all in
accordance with the Engagement Letter. At least two business days
prior to the Closing Date, the Placement Agent shall submit to the
Company its bona fide estimate of the amount of expenses for which
the Placement Agent is entitled to reimbursement pursuant to the
Engagement Letter. As soon as reasonably practicable after the
Closing Date, the Placement Agent shall submit to the Company its
expense reimbursement invoice and the Company or the Placement
Agent, as applicable, shall make any necessary reconciling
payment(s) within thirty days of receipt of such
invoices.
2.1
Representations and Warranties of the Company . Except as
Previously Disclosed, the Company represents and warrants to the
Placement Agent as of the date hereof, and as of the Closing Date,
the following:
(a)
Filing of Registration Statement . The Company has prepared
and filed, in conformity with the requirements of the Securities
Act of 1933, as amended (the “ Securities Act
”), and the published rules and regulations thereunder (the
“ Rules and Regulations ”) adopted by the
Securities and Exchange Commission (the “ Commission
”), a registration statement, including a prospectus, on Form
S-3 (File No. 333-163206), which became effective as of
November 30, 2009, which provide for the offering of Common
Stock and other securities of the Company, including the Offering
of the Shares, from time to time in accordance with Rule
415(a)(1)(x) of the Rules and Regulations, and such amendments
thereof as may have been required to the date of this Agreement.
The term “ Registration Statement ” as used in
this Agreement means the aforementioned registration statement, as
amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Securities
Act, (the “ Effective Time ”), including
(i) all documents filed as a part thereof or incorporated or
deemed to be incorporated by reference therein and (ii) any
information in the corresponding Base Prospectus (as defined below)
or a prospectus supplement filed with the Commission pursuant to
Rule 424(b) under the Securities Act, to the extent such
information is deemed pursuant to Rule 430A (“ Rule
430A ”), 430B (“ Rule 430B ”) or
430C (“ Rule 430C ”) under the Securities
Act to be a part thereof at the Effective Time. For purposes of
this Agreement, all references to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus (as defined below), the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“ EDGAR ”). All references in this
Agreement to amendments or supplements to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the subsequent
filing of any document under the Exchange
3
Act and which
is deemed to be incorporated therein by reference therein or
otherwise deemed to be a part thereof.
(b)
Effectiveness of Registration Statement; Certain Defined
Terms . The Company and the transactions contemplated by this
Agreement meet the requirements and comply with the conditions for
the use of Form S-3 under the Securities Act. The Company has
complied, to the Commission’s satisfaction, with all requests
of the Commission for additional or supplemental information. No
stop order preventing or suspending use of the Registration
Statement, any Preliminary Prospectus or the Prospectus or the
effectiveness of the Registration Statement has been issued by the
Commission, and no proceedings for such purpose pursuant to
Section 8A of the Securities Act against the Company or
related to the Offering have been instituted or are pending or, to
the Company’s knowledge, are contemplated or threatened by
the Commission, and any request received by the Company on the part
of the Commission for additional information has been complied
with. As used in this Agreement:
(i)
“ Base Prospectus ” means the prospectus
included in the Registration Statement at the Effective
Time.
(ii)
“ Disclosure Package ” means (i) the
Statutory Prospectus (as defined below) and (ii) the pricing
and other information as set forth on Exhibit B hereto,
all considered together.
(iii)
“ Preliminary Prospectus ” means any preliminary
prospectus supplement, subject to completion, relating to the
Shares, filed by the Company with the Commission pursuant to Rule
424(b) under the Securities Act for use in connection with the
offering and sale of the Shares, together with the Base Prospectus
attached to or used with such preliminary prospectus
supplement.
(iv)
“ Prospectus ” means the final prospectus
supplement, relating to the Shares, filed by the Company with the
Commission pursuant to Rule 424(b) under the Securities Act in the
form furnished by the Company to the Placement Agents for use in
connection with the offering and sale of the Shares that discloses
the public offering price and other final terms of the Shares,
together with the Base Prospectus attached to or used with such
final prospectus supplement.
(v)
“ Statutory Prospectus ” means the Preliminary
Prospectus, if any, and the Base Prospectus, each as amended and
supplemented immediately prior to the date hereof, including any
document incorporated by reference therein and any prospectus
supplement.
(c)
Contents of Registration Statement . The Registration
Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at all times during
which a prospectus is required by the Securities Act to be
delivered (whether physically or through compliance with
Rule 172 under the Securities Act or any similar rule) in
connection with any sale of Shares (the “ Prospectus
Delivery Period ”), will comply, in all material
respects, with the requirements of the Securities Act and the Rules
and Regulations; the Registration Statement did not, as of the
Effective Time, contain an untrue statement of a
4
material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
provided , that the Company makes no representation or
warranty in this paragraph with respect to statements in or
omissions from the Registration Statement in reliance upon, and in
conformity with, written information furnished to the Company by
the Placement Agent specifically for inclusion therein, which
information the parties hereto agree is limited to the Placement
Agent’s Information (as defined in Section 7
hereof).
(d)
Contents of Prospectus . The Prospectus will comply, as of
the date that it is filed with the Commission, the date of its
delivery to Investors and at all times during the Prospectus
Delivery Period, in all material respects, with the requirements of
the Securities Act; at no time during the period that begins on the
date the Prospectus is filed with the Commission and ends at the
end of the Prospectus Delivery Period will the Prospectus, as then
amended or supplemented, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, provided , that the
Company makes no representation or warranty with respect to
statements in or omissions from the Prospectus in reliance upon,
and in conformity with, written information furnished to the
Company by the Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the
Placement Agent’s Information.
(e)
Incorporated Documents . Each of the documents incorporated
or deemed to be incorporated by reference in the Registration
Statement, at the time such document was filed with the Commission
or at the time such document became effective, as applicable,
complied, in all material respects, with the requirements of the
Exchange Act, were filed on a timely basis with the Commission and
did not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(f)
Disclosure Package . The Disclosure Package did not, and at
the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , that the Company makes no
representations or warranty in this paragraph with respect to
statements in or omissions from the Disclosure Package in reliance
upon, and in conformity with, written information furnished to the
Company by the Placement Agent specifically for inclusion therein,
which information the parties hereto agree is limited to the
Placement Agent’s Information.
(g)
Distributed Materials; Conflict with Registration Statement
. Other than the Base Prospectus, any Preliminary Prospectus and
the Prospectus, the Company has not made, used, prepared,
authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or a solicitation
of an offer to buy the Shares other than any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities
Act.
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(h)
Not an Ineligible Issuer . At the date hereof, the Company
was not and is not an “ineligible issuer,” as defined
in Rule 405 (“ Rule 405 ”) under the
Securities Act.
(i)
Due Incorporation . Each of the Company and its Subsidiaries
(as defined below) is an entity duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, with the requisite corporate power and authority to
own or lease and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any
Subsidiary is in material violation of any of the provisions of its
respective certificate or articles of incorporation or bylaws or
other similar organizational documents. Each of the Company and its
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, would not
reasonably be expected to have a Material Adverse Effect. For
purposes of this Agreement, “ Material Adverse Effect
” means any event, fact, circumstance or occurrence (each, an
“ Effect ”) that, individually or in the
aggregate with any other event, fact, circumstance or occurrence,
results or would reasonably be expected to result in a material
adverse change in or a material adverse effect over a commercially
reasonable period on the (i) financial condition, results of
operations, business, operations, business assets or regulatory
status of the Company and its Subsidiaries, taken as a whole;
(ii) legality, validity or enforceability of this Agreement,
or (iii) ability on the part of the Company or the Placement
Agent to consummate the transactions contemplated by this Agreement
and to perform in any material respect its obligations under this
Agreement within the time frames provided for in this Agreement,
except that any of the following, either alone or in combination,
shall not be deemed a Material Adverse Effect: (A) effects
resulting from or relating to the announcement or disclosure of the
sale of the Shares or other transactions contemplated by this
Agreement, (B) effects caused by any event, occurrence or
condition resulting from or relating to the taking of any action in
accordance with this Agreement, (C) changes in the generally
accepted accounting principles or regulatory accounting principles
generally applicable to banks or their bank holding companies in
the United States or Korea, as the case may be, (D) changes in
applicable laws, rules and regulations or interpretations thereof
by any Governmental Entity (as defined below), except for such
changes which would reasonably be expected to have the effect of
making illegal the consummation of the transactions contemplated
hereby, (E) general changes in global or national economic,
monetary or financial conditions, including changes in prevailing
interest rates, credit markets, equity markets, commodity prices,
currency exchange rates, bank failure rates, sovereign debt
defaults, capital market conditions or real estate price
appreciation/depreciation trends, or in the industries in which the
Company and its subsidiaries operate, other than significant,
sustained, reasonably unanticipated and materially adverse changes
in economic conditions in the United States or Korea, which changes
would reasonably be expected to have the effect of making
commercially impractical consummation of the transactions
contemplated hereby, (F) changes in global or national
political conditions, including the outbreak or escalation of war,
acts of terrorism or civil unrest, other than significant,
sustained, reasonably unanticipated and materially adverse changes
in such conditions in the United States or Korea, which changes
would reasonably be expected to have the effect of making
commercially impractical consummation of the transactions
contemplated hereby, (G) the entering into by the Company or
any of its Subsidiaries or the continuation (on substantially the
same or similar terms) of any Regulatory Agreement (as defined
below) and any future classifications, guidance, directives or
other supervisory actions
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(which are
reasonably foreseeable based on the current arrangements or
agreements) that are related to the Company’s or any of its
Subsidiaries’ financial condition as of the date of this
Agreement, in and of itself, (H) any failure by the Company to
meet any public estimates (disclosed to the public in compliance
with applicable laws and consistent with past practice) or
expectations or analysts estimates or expectations of the
Company’s financial condition, results of operations or other
measures of financial performance for any period, or any failure by
the Company to meet any internal budgets, plans or forecasts of its
financial condition, results of operations, or other measures of
financial performance, (I) the results of operations and cash
flow for the period ended, and changes in the financial condition
and shareholders equity of the Company at June 30, 2010,
(J) any legal proceedings (other than a permanent injunction
or order that prohibits the consummation of the transactions
contemplated hereby) made or brought by any of the current or
former stockholders of the Company (on their own behalf or on
behalf of the Company) against the Company arising out of this
Agreement or any of the transaction contemplated hereby or
(K) failure to consummate the transactions contemplated by the
Woori SPA. For purposes of this Agreement, “
Subsidiary ” means those entities identified on
Schedule 2(j) . For purposes of this Agreement, “
Governmental Entity ” means any governmental or
regulatory authorities, agencies, courts, commissions or other
entities, whether federal, state, local or foreign, or applicable
self-regulatory organizations
(j)
Subsidiaries . The Company has no direct or indirect
Subsidiaries other than those subsidiaries listed on
Schedule 2(j) and has indicated therein which
Subsidiaries would constitute a “significant
subsidiary” of such person within the meaning of Rule 1-02 of
Regulation S-X of the Commission (“ Company
Significant Subsidiary ”). The Company owns, directly or
indirectly, all of the capital stock of each Company Significant
Subsidiary, free and clear of any and all Liens (other than
Permitted Liens), and all the issued and outstanding shares of
capital stock of each Company Significant Subsidiary have been duly
authorized and validly issued and are fully paid and
non-assessable. There are no outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character
whatsoever providing for the purchase or issuance of any Company
Significant Subsidiary’s capital stock or any securities
representing the right to purchase or otherwise receive any shares
of such Company Significant Subsidiary’s capital stock.
Except in respect of the Subsidiaries, the Company does not own
beneficially, directly or indirectly, more than 5% of any class of
equity securities or similar interests of any corporation, bank,
business trust, association or similar organization, and is not,
directly or indirectly, a partner in any partnership or party to
any joint venture. Hanmi Bank, the Company’s principal
subsidiary (“ Hanmi Bank ”), is (A) duly
organized and validly existing as a banking institution chartered
by the State of California, (B) in good standing with the
Department of Financial Institutions of the State of California
(“ CDFI ”), (C) a member bank of the
Federal Reserve System and (D) its deposit accounts are
insured by the Federal Deposit Insurance Corporation (“
FDIC ”) to the fullest extent permitted by the Federal
Deposit Insurance Act and the rules and regulations of the FDIC
thereunder, and all premiums and assessments required to be paid in
connection therewith have been paid when due. For purposes of this
Agreement, “ Lien ” means any mortgage, pledge,
lien (statutory or otherwise), encumbrance, hypothecation, charge,
security interest, right of first refusal, right of first offer,
preemptive right or other restrictions of any kind. For purposes of
this Agreement, “ Permitted Liens ” means
(i) Liens for Taxes (as defined below) and other governmental
charges and assessments arising in the ordinary course that are not
yet due and payable, (ii) Liens of landlords, carriers,
warehousemen, mechanics and materialmen and other like Liens
arising in the ordinary course of
7
business for
sums not yet due and payable, and (iii) other Liens or
imperfections on property that are, individually or in the
aggregate, (A) not material in amount or (B) do not
materially detract from the value of or materially impair the
existing use of the property affected by such Lien or imperfection.
For the purposes of this Agreement, the term “ Tax
” means any and all taxes, fees, levies, duties, tariffs,
imposts and other charges of any kind (together with any and all
interest, penalties, additions to tax and additional amounts
imposed with respect thereto) imposed by any Governmental Entity,
including taxes on or with respect to income, franchises, windfall
or other profits, gross receipts, property, sales, use, capital
stock, payroll, employment, unemployment, social security,
workers’ compensation or net worth, and taxes in the nature
of excise, withholding, ad valorem stamp, transfer, gains or value
added; license, registration and documentation fees, and
customs’ duties, tariffs, and similar charges.
(k)
Due Authorization and Enforceability . The Company has the
full corporate power and authority to enter into this Agreement,
and the Subscription Agreement, and to perform and discharge its
obligations hereunder and thereunder; and each of this Agreement
and the Subscription Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid, legal and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as rights to indemnity
hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles
of equity (whether applied in equity or in law).
(l)
The Shares . The issuance of the Shares has been duly and
validly authorized by the Company and, when issued, delivered and
paid for in accordance with the terms of this Agreement and the
Subscription Agreement, will have been duly and validly issued and
will be fully paid and nonassessable, will not be subject to any
statutory or contractual preemptive rights or other rights to
subscribe for or purchase or acquire any shares of Common Stock of
the Company, which have not been waived or complied with and will
conform in all material respects to the description thereof
contained in the Disclosure Package and the Prospectus and such
description conforms in all material respects to the rights set
forth in the instruments defining the same. On the Closing Date,
all stock transfer or other Taxes (other than income taxes) which
are required to be paid in connection with the sale and transfer of
the Shares to be sold hereunder will be, or will have been, fully
paid or provided for, by the Company, and all laws imposing such
taxes will be or will have been fully complied with.
(m)
Capitalization . The information set forth under the caption
“Capitalization” in the Statutory Prospectus (and any
similar sections or information, if any, contained in the
Disclosure Package) is fairly presented on a basis consistent with
the Company’s financial statements. The authorized capital
stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus under the caption
“Description of Capital Stock” (and any similar
sections or information, if any, contained in the Disclosure
Package). The issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable, and have been issued in compliance with all
federal and state securities laws. None of the outstanding shares
of Common Stock was issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or
purchase or acquire any securities of the Company. Other than those
described in the Prospectus and the Disclosure Package or as set
forth herein, there are no
8
(i) outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into,
or exer
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