0001104659-12-006257.txt : 20120202 0001104659-12-006257.hdr.sgml : 20120202 20120202171606 ACCESSION NUMBER: 0001104659-12-006257 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20120202 DATE AS OF CHANGE: 20120202 GROUP MEMBERS: CASTLE CREEK CAPITAL IV LLC GROUP MEMBERS: CASTLE CREEK CAPITAL PARTNERS IV, LP GROUP MEMBERS: WILLIAM J. RUH FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EGGEMEYER JOHN M III CENTRAL INDEX KEY: 0001197257 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: PO BOX 1329 CITY: RANCHO SANTA FE STATE: CA ZIP: 92067 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERMOUNTAIN COMMUNITY BANCORP CENTRAL INDEX KEY: 0001284506 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 820499463 STATE OF INCORPORATION: ID FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80434 FILM NUMBER: 12566765 BUSINESS ADDRESS: STREET 1: PO BOX 967 CITY: SANDPOINT STATE: ID ZIP: 83864 BUSINESS PHONE: 206-263-0505 MAIL ADDRESS: STREET 1: PO BOX 967 CITY: SANDPOINT STATE: ID ZIP: 83864 SC 13D 1 a12-4099_1sc13d.htm SC 13D

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE COMMISSION

 

 

Washington, D.C. 20549

 

 

 

 

 

SCHEDULE 13D

 

 

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

INTERMOUNTAIN COMMUNITY BANCORP

(Name of Issuer)

 

Common Stock (no par value)

(Title of Class of Securities)

 

45881M100

(CUSIP Number)

 

John M. Eggemeyer

6051 El Tordo

Rancho Santa Fe, CA 92067-1329

858-756-8300

 

Copy to:

 

William J. Ruh

c/o Castle Creek Capital

6051 El Tordo

Rancho Santa Fe, CA 92067-1329

858-756-8300

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

January 23, 2012

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

CUSIP No.   45881M100

 

 

1.

Names of Reporting Persons.
Castle Creek Capital Partners IV, LP

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
WC

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
2,055,260(1)(2)

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
2,055,260(1)(2)

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
2,055,260(1)(2)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
9.9%(3)

 

 

14.

Type of Reporting Person (See Instructions)
PN (Limited Partnership)

 


(1)   The information set forth in Items 4, 5 and 6 of this statement on Schedule 13D is incorporated herein by reference.

(2)   Castle Creek Capital Partners IV, LP also owns (i) 318,894.8 shares of newly created Mandatorily Convertible Participating Preferred Stock, Series B (the “Series B Preferred Stock”) of Intermountain which will automatically convert into shares of a new series of non-voting common stock (the “Non-Voting Common Stock”) at a conversion price of $1.00 per share upon approval by Intermountain’s shareholders of an amendment to Intermountain’s Amended and Restated Articles of Incorporation to authorize such Non-Voting Common Stock which, in turn, is convertible into 15,944,741 shares of common stock, no par value (“Common Stock”) in connection with certain transfers of such shares of Non-Voting Common Stock, and (ii) a warrant exercisable for 850,000 shares of Non-Voting Common Stock at the exercise price of $1.00 per share (or, in the event the warrant is exercised prior to the required shareholder approval, for Series B Preferred Stock at an economically equivalent exercise price) which is convertible into 850,000 shares of Common Stock in connection with certain transfers of such shares of Non-Voting Common Stock. Since Castle Creek Capital Partners IV, LP does not have the right to acquire such Common Stock and will have no voting or investment power over such Common Stock, those underlying shares of Common Stock are not included in the amount reported herein.

(3)   This calculation is based on 20,760,192 shares of common stock of Intermountain Community Bancorp outstanding as of the closing of business on January 23, 2012, which includes the 8,409,840 shares of common stock outstanding as of September 30, 2011 as reported in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 and the 12,350,352 shares of common stock of Intermountain Community Bancorp that were issued in its capital raise as reported in its Current Report on Form 8-K that was filed on January 26, 2012.

 

2



 

CUSIP No.   45881M100

 

 

1.

Names of Reporting Persons.
Castle Creek Capital IV LLC

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
WC/AF

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Delaware

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
2,055,260(1)

 

8.

Shared Voting Power
0

 

9.

Sole Dispositive Power
2,055,260(1)

 

10.

Shared Dispositive Power
0

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
2,055,260(1)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
9.9%(2)

 

 

14.

Type of Reporting Person (See Instructions)
OO (Limited Liability Company)

 


(1)  The information set forth in Items 4, 5 and 6 of this statement on Schedule 13D is incorporated herein by reference.

(2)  This calculation is based on 20,760,192 shares of common stock of Intermountain Community Bancorp outstanding as of the closing of business on January 23, 2012, which includes the 8,409,840 shares of common stock outstanding as of September 30, 2011 as reported in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 and the 12,350,352 shares of common stock of Intermountain Community Bancorp that were issued in its capital raise as reported in its Current Report on Form 8-K that was filed on January 26, 2012.

 

3



 

CUSIP No.   45881M100

 

 

1.

Names of Reporting Persons.
John M. Eggemeyer

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
PF/AF

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States of America

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
2,055,260(1)

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
2,055,260(1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
2,055,260(1)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
9.9%(2)

 

 

14.

Type of Reporting Person (See Instructions)
IN (Individual)

 


(1)  The information set forth in Items 4, 5 and 6 of this statement on Schedule 13D is incorporated herein by reference.

(2)  This calculation is based on 20,760,192 shares of common stock of Intermountain Community Bancorp outstanding as of the closing of business on January 23, 2012, which includes the 8,409,840 shares of common stock outstanding as of September 30, 2011 as reported in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 and the 12,350,352 shares of common stock of Intermountain Community Bancorp that were issued in its capital raise as reported in its Current Report on Form 8-K that was filed on January 26, 2012.

 

4



 

CUSIP No.   45881M100

 

 

1.

Names of Reporting Persons.
William J. Ruh

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 o

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
PF

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States of America

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
0

 

8.

Shared Voting Power
2,055,260(1)

 

9.

Sole Dispositive Power
0

 

10.

Shared Dispositive Power
2,055,260(1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person
2,055,260(1)

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11)
9.9%(2)

 

 

14.

Type of Reporting Person (See Instructions)
IN (Individual)

 


(1)  The information set forth in Items 4, 5 and 6 of this statement on Schedule 13D is incorporated herein by reference.

(2)  This calculation is based on 20,760,192 shares of common stock of Intermountain Community Bancorp outstanding as of the closing of business on January 23, 2012, which includes the 8,409,840 shares of common stock outstanding as of September 30, 2011 as reported in its Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 and the 12,350,352 shares of common stock of Intermountain Community Bancorp that were issued in its capital raise as reported in its Current Report on Form 8-K that was filed on January 26, 2012.

 

5



 

Item 1.                Security and Issuer

 

This statement on Schedule 13D (this “Schedule 13D”) relates to the shares of common stock, no par value (the “Common Stock”), of Intermountain Community Bancorp, an Idaho corporation (“Intermountain”).  The principal executive office of Intermountain is located at 414 Church Street, Sandpoint, Idaho 83864.

 

Item 2.                Identity and Background

 

The Schedule 13D is being jointly filed by the parties identified below.  All of the filers of this Schedule 13D are collectively referred to as the “Reporting Persons”.  The joint filing agreement of the Reporting Persons is filed as Exhibit 1 hereto.

 

(a)-(c)                The following are the Reporting Persons: Castle Creek Capital Partners IV, LP, a Delaware limited partnership (“Fund IV”) and a private equity fund focused on investing in community banks throughout the United States; Castle Creek Capital IV LLC, a Delaware limited liability company (“CCC IV”), whose principal business is to serve as the sole general partner of, and manage, Fund IV; John M. Eggemeyer, a California resident, a managing principal of Castle Creek Capital LLC (a merchant banking firm specializing in the financial services industry), and a managing principal of CCC IV (“Eggemeyer”); and William J. Ruh, a California resident, a managing principal of Castle Creek Capital LLC and a managing principal of CCC IV (“Ruh”). The business address for each of the Reporting Persons is 6051 El Tordo, Rancho Santa Fe, CA 92067.

 

(d)                                 During the last five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors).

 

(e)                                  During the last five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or mandating activities subject to, federal or state securities laws of finding any violation with respect to such laws.

 

(f)                                    Each of Eggemeyer and Ruh is a citizen of the United States of America.

 

Item 3.                Source and Amount of Funds or Other Consideration

 

As more fully described in Items 4 and 6 below, on April 6, 2011 Intermountain and Fund IV entered into a Securities Purchase Agreement (the “Original Purchase Agreement”).  Intermountain and Fund IV amended the Original Purchase Agreement on January 20, 2012 (the “Amended Purchase Agreement”).  Pursuant to the Amended Purchase Agreement, Fund IV purchased 2,055,260 shares of Common Stock, 318,894.8 shares of a newly created Mandatorily Convertible Participating Preferred Stock, Series B (the “Series B Preferred Stock”) of Intermountain which will automatically convert into shares of a new series of non-voting common stock (the “Non-Voting Common Stock”) at a conversion price of $1.00 per share upon approval by Intermountain’s shareholders of an amendment (the “Articles Amendment”) to Intermountain’s Amended and Restated Articles of Incorporation (the “Articles”) to authorize such Non-Voting Common Stock (the “Shareholder Approval”), and a warrant exercisable for 850,000 shares of Non-Voting Common Stock (the “Warrants”, and together with the Common Stock, the Series B Preferred Stock and the Non-Voting Common Stock, the “Securities”) at the exercise price of $1.00 per share (or, in the event the Warrant is exercised prior to Shareholder Approval, for Series B Preferred Stock at an economically equivalent exercise price).  The funds used by Fund IV were obtained

 

6



 

from working capital.

 

Item 4.                Purpose of Transaction

 

The information set forth in Items 3 and 6 is incorporated herein by reference.

 

Fund IV acquired the Common Stock of Intermountain for investment purposes.  The investment was not motivated by an intent to exercise control, directly or indirectly, over the management, policies or business operations of Intermountain.

 

Subject to the limitations imposed by the Amended Purchase Agreement and applicable federal and state securities laws, the Reporting Persons may seek to dispose of the Common Stock (including, without limitation, distributing some or all of the Common Stock to the Reporting Persons’ respective members, partners, stockholders or beneficiaries, as applicable) from time to time, subject to market conditions and other investment considerations.  To the extent permitted by the Amended Purchase Agreement and applicable bank regulatory limitations, each Reporting Person may directly or indirectly acquire additional shares of Common Stock or associated rights or securities exercisable for or convertible into Common Stock, depending upon an ongoing evaluation of its investment in Common Stock and securities exercisable for or convertible into Common Stock, applicable legal restrictions, prevailing market conditions, liquidity requirements of such Reporting Person and/or other investment considerations.

 

To the extent permitted under the Amended Purchase Agreement and passivity commitments described below, the Reporting Persons may engage in discussions with management, the board of directors, other stockholders of Intermountain and other relevant parties concerning the business, operations, board composition, management, strategy and future plans of Intermountain.

 

Pursuant to the terms of the Amended Purchase Agreement and subject to any applicable approval of the appropriate bank regulatory authorities, Fund IV is entitled to designate one person (the “Board Representative”) for election to the board of directors of Intermountain as well as the board of directors of Panhandle State Bank (the “Bank”) for so long as Fund IV is and its affiliates beneficially own at least 5% of Intermountain’s outstanding shares of Common Stock and Non-Voting Common Stock taken together as a class (“Qualifying Interest”).  Pursuant to these provisions, Mr. John Pietrzak has been appointed to the board of directors of the Bank.

 

The foregoing reference to and description of the Amended Purchase Agreement and the transactions contemplated thereby do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the full text of the Form of Amended and Restated Securities Purchase Agreement, which is attached hereto as Exhibit 2 and incorporated herein by reference.

 

Other than as described in this Item 4, each of the Reporting Persons has no present plans or proposals that relate to or would result in any of the events set forth in Items 4(a) through (j) of Schedule 13D.

 

Item 5.                Interests in Securities of the Issuer

 

The information contained on the cover pages to this Schedule 13D and the information set forth or incorporated in Items 2, 3, 4 and 6 is incorporated herein by reference.

 

(a) and (b)

 

Reporting Person

 

Amount
Beneficially
Owned

 

Percent of
Class

 

Sole Power
to Vote or
Direct the
Vote

 

Shared Power
to Vote or
Direct the Vote

 

Sole Power to
Dispose or to
Direct the
Disposition

 

Shared Power to
Dispose or Direct
the Disposition

 

Castle Creek Capital Partners IV, LP (1)

 

2,055,260

 

9.9

%

2,055,260

 

0

 

2,055,260

 

0

 

Castle Creek Capital IV LLC (2)

 

2,055,260

 

9.9

%

2,055,260

 

0

 

2,055,260

 

0

 

John M. Eggemeyer (3)

 

2,055,260

 

9.9

%

0

 

2,055,260

 

0

 

2,055,260

 

William J. Ruh (4)

 

2,055,260

 

9.9

%

0

 

2,055,260

 

0

 

2,055,260

 

 

7



 


(1)  Fund IV also owns (i) 318,894.8 shares of Series B Preferred Stock which will automatically convert into shares Non-Voting Common Stock at a conversion price of $1.00 per share upon approval by Intermountain’s shareholders of the Articles Amendment to authorize such Non-Voting Common Stock which, in turn, is convertible into 15,944,741 shares of Common Stock in connection with certain transfers of such shares of Non-Voting Common Stock, and (ii) a warrant exercisable for 850,000 shares of Non-Voting Common Stock at the exercise price of $1.00 per share (or, in the event the warrant is exercised prior to Shareholder Approval, for Series B Preferred Stock at an economically equivalent exercise price) which is convertible into 850,000 shares of Common Stock in connection with certain transfers of such shares of Non-Voting Common Stock.  Since Fund IV does not have the right to acquire such Common Stock and will have no voting or investment power over such Common Stock, those underlying shares of Common Stock are not included in the amount reported herein.

 

(2)  CCC IV disclaims beneficial ownership of the Common Stock owned by Fund IV, except to the extent of its pecuniary interest therein.

 

(3)  Mr. Eggemeyer shares voting and dispositive power over the 2,055,260 shares beneficially owned by Fund IV with Mr. Ruh, due to the fact that each is a managing principal of CCC IV, the sole general partner of Fund IV.  Mr. Eggemeyer disclaims beneficial ownership of the Common Stock beneficially owned by CCC IV and Fund IV, respectively, except to the extent of his pecuniary interests therein.

 

(4)  Mr. Ruh shares voting and dispositive power over the 2,055,260 shares owned by Fund IV with Mr. Eggemeyer, due to the fact that each is a managing principal of CCC IV, the sole general partner of Fund IV.  Mr. Ruh disclaims beneficial ownership of the Common Stock beneficially owned by CCC IV and Fund IV, respectively, except to the extent of his pecuniary interests therein.

 

(c)  Except as set forth in this Schedule 13D, none of the Reporting Persons nor, to the best knowledge of each of the Reporting Persons, without independent verification, any person named in Item 2, has engaged in any transaction during the past 60 days involving the securities of Intermountain.

 

(d) Other than the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of Intermountain referred to in this Item 5.

 

(e)  Not applicable.

 

Item 6.                Contracts, Arrangements or Understandings with Respect to Securities of the Issuer

 

The information set forth or incorporated in Items 3 and 4 is incorporated herein by reference.

 

On April 6, 2011 Intermountain and Fund IV entered into the Original Purchase Agreement.  Intermountain and Fund IV entered into the Amended Purchase Agreement on January 20, 2012, pursuant to which Fund IV agreed, subject to the terms and conditions of the Amended Purchase Agreement, to invest $18,000,000 in Intermountain through a direct purchase of 2,055,260 shares of Common Stock, 318,894.8 shares Series B Preferred Stock which will automatically convert into Non-Voting Common Stock at a conversion price of $1.00 per share upon approval by Intermountain’s shareholders of the Articles Amendment to the Articles to authorize such Non-Voting Common Stock, and a Warrant exercisable for 850,000 shares of Non-Voting Common Stock at the exercise price of $1.00 per share (or,

 

8



 

in the event the Warrant is exercised prior to Shareholder Approval, for Series B Preferred Stock at an economically equivalent exercise price).

 

The following is a description of certain terms of the Amended Purchase Agreement and the Securities:

 

Representations and Warranties.  Customary representations and warranties were made by Intermountain to Fund IV relating to Intermountain, its business and the issuance of the Securities as well as customary representations and warranties by Fund IV to Intermountain.  Intermountain agreed to indemnify Fund IV for breaches of its respective representations and warranties, subject to certain limitations.

 

Board Representation.  Fund IV is entitled to designate the Board Representative for election to the board of directors of Intermountain as well as the board of directors of the Bank for so long as Fund IV and its affiliates beneficially own a Qualifying Interest.  Pursuant to these provisions, Mr. John Pietrzak has been appointed to the board of directors of the Bank.  The board of directors of Intermountain and the Bank must cause the Fund IV representative to be appointed to any two of the following committees to be agreed: the Compensation Committee, the Nominating/Corporate Governance Committee, and the Risk Management Committee, in each case so long as the Board Representative qualifies to serve on such committees under the corporate governance guidelines and committee charters currently in effect, as applicable, and rules applicable to Intermountain and the Bank by any exchange on which the Common Shares are then listed.  So long as Fund IV and its affiliates beneficially own a Qualifying Interest, Fund IV is also entitled to designate one nonvoting board observer to attend all meetings of the committees of the board of directors of Intermountain and the Bank of which the Fund IV representative is not then a member.

 

Avoidance of Control.  Neither Intermountain nor any of its subsidiaries will take any action that would reasonably be expected to pose a substantial risk that (i) Fund IV’s equity interest in Intermountain (together with equity of Intermountain owned by Fund IV’s affiliates (as such term is used under the BHC Act the Bank Holding Company Act the Bank Holding Company Act of 1956, as amended (the “BHC Act”))) would exceed 33.3% of Intermountain’s total equity, or (ii) Fund IV’s ownership of any class of voting securities (together with the ownership by Fund IV’s affiliates (as such term is used under the BHC Act) of voting securities of Intermountain) would exceed 9.9% of such class, without the prior written consent of Fund IV, or to increase to an amount that would constitute “control” under the BHC Act, or otherwise cause Fund IV to “control” Intermountain under and for purposes of the BHC Act, the Change of Bank Control Act of 1978, as amended, or any rules or regulations promulgated thereunder.

 

Standstill.  The Amended Purchase Agreement places certain restrictions on the ability of Fund IV and its affiliates to take certain actions without the prior written approval of Intermountain until such time as Fund IV no longer owns a Qualifying Interest or the second anniversary of the closing date.  Such restrictions include the ability of Fund IV to (i) acquire (or offer, agree or propose to acquire, other than as contemplated in the Amended Purchase Agreement) beneficial ownership of any voting securities of Intermountain above 24.9%; (ii) make or participate in any solicitation of proxies to vote, or seek to advise or influence any person or entity with respect to the voting of any voting securities of Intermountain; (iii) call or seek to call a meeting of the stockholders of Intermountain or initiate any shareholder proposal for action, or seek, propose or act to influence or control the management, the board or policies of Intermountain; or (iv) enter into or agree, offer, propose or seek to enter into any acquisition, merger or other business combination relating to all or part of the assets of Intermountain or any of its subsidiaries or any of their respective businesses; and certain other restrictions.

 

Registration Rights.  Intermountain has granted Fund IV customary registration rights with respect to the Securities acquired by Fund IV in connection with the Amended Purchase Agreement.  Pursuant to such registration rights, Intermountain has agreed to prepare and file with the Securities and Exchange Commission a shelf registration statement covering the resale of the Securities (or, if permitted by securities laws, otherwise designate an existing shelf registration statement to cover the resale of the

 

9



 

Securities) as promptly as practicable after (and in any event no more than sixty (60) days after) January 23, 2012.

 

Preemptive Rights.  So long as Fund IV owns 2% or more of the outstanding shares of Common Stock (including Common Stock into or for which shares of any securities owned by Fund IV are directly or indirectly convertible or exercisable), if Intermountain at any time makes any public or non-public offering or sale of any equity (including Common Stock, preferred stock and restricted stock), or any securities, options or debt that is convertible or exchangeable into equity or that include an equity component (any such security, a “New Security”) (other than the issuance and sale of securities (1) issued or agreed or contemplated to be issued as of January 20, 2012, (2) in connection with the Rights Offering (as defined below under “Rights Offering”), (3) issuances upon exercise of warrants outstanding as of January 20, 2012, (4) to employees, officers, directors or consultants of Intermountain pursuant to employee benefit plans or compensatory arrangements approved by the board of directors (including upon the exercise of employee stock options granted pursuant to any such plans or arrangements), (5) pursuant to any rights plan or (6) as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar non-financing transaction), Fund IV must first be afforded the opportunity to acquire from Intermountain for the same price (net of any underwriting discounts or sales commissions) and on the same terms (except that, Fund IV may elect to receive such securities in nonvoting form, convertible into shares of voting securities) as such securities are proposed to be offered to others, up to the amount of such New Securities to be offered in the aggregate required to enable Fund IV to maintain its proportionate equivalent interest in the Common Stock immediately prior to any such issuance of New Securities.  Notwithstanding the foregoing, in no event will Fund IV have the right to purchase New Securities to the extent that such purchase would result in Fund IV exceeding 24.9% of the outstanding shares of a class of voting securities.

 

Rights Offering.  As promptly as practicable following January 23, 2012, Intermountain will commence a rights offering (the “Rights Offering”) providing common stockholders of record as of the close of business on January 20, 2012 with non-transferable rights (the “Rights”) to purchase from Intermountain shares of Common Stock at a per share price of $1.00.  Each Right shall entitle the holder thereof to purchase a specified number of shares of Common Stock, provided that (1) no such holder will thereby exceed, together with any other person with whom such holder may be aggregated under applicable law, 4.99% beneficial ownership of Intermountain’s Common Shares and (2) the aggregate purchase price of all shares of Common Stock purchased in the Rights Offering will not exceed the difference between $56,000,000 minus the sum of (x) the total purchase price to Fund IV, (y) the aggregate purchase price pursuant to the concurrent private placements, and (z) the aggregate dollar amount of gross proceeds raised in any other private placement of securities by Intermountain which is consummated prior to the commencement of the Rights Offering.  In the event the Rights Offering is over-subscribed, subscriptions by holders of Rights shall be reduced proportionally based on the number of shares of Common Stock such holders elect to purchase pursuant to their over-subscription privilege.

 

The Series B Preferred Stock.  The rights, preferences and privileges of the Series B Preferred Stock are set forth in the Articles of Amendment and Certificate of Designations filed with the Secretary of State of Idaho.  Upon receipt of the Shareholder Approval, each share of the Series B Preferred Stock will automatically convert into 50 shares of Non-Voting Common Stock at a conversion price of $1.00 per share (subject to customary anti-dilution adjustments).  Each share of Series B Preferred Stock will initially bear a dividend that mirrors any dividend payable on the shares of Non-Voting Common Stock underlying such share of Series B Preferred Stock (with such dividends being deemed to equal any dividends payable on the Common Stock).  In the event that Shareholder Approval is not obtained before June 30, 2012, the dividends payable with respect to each share of Series B Preferred Stock outstanding at such time shall be cumulative and will accrue whether or not declared by the Company’s Board, and shall accrue at a 15% rate per annum until receipt of the Shareholder Approval.

 

The Warrant.  The Warrant has a term of three years and is exercisable for 850,000 shares of Non-Voting Common Stock at the exercise price of $1.00 per share (or, in the event the Warrants are exercised prior to Shareholder Approval, for Series B Preferred Stock at an economically equivalent exercise price)

 

10



 

that would be convertible into Common Stock in connection with certain transfers of such shares of Non-Voting Common Stock.  The Warrant contains customary anti-dilution adjustments.  The Form of Warrant is attached hereto as Exhibit 3 and incorporated herein by reference.

 

The foregoing reference to and description of the Amended Purchase Agreement and the transactions contemplated thereby do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the full text of the Form of Amended and Restated Securities Purchase Agreement, which is attached hereto as Exhibit 2 and incorporated herein by reference.

 

In connection with the Amended Purchase Agreement, Fund IV made certain passivity commitments to the Board of Governors of the Federal Reserve System to ensure that Fund IV and its affiliates will not, among other things, exercise or attempt to exercise a controlling influence over the management or policies of Intermountain or any of its subsidiaries.  The Passivity Commitment Letter is attached hereto as Exhibit 4 and incorporated herein by reference.

 

Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons entered into an agreement on February 2, 2012, with respect to the joint filing of this Statement and any amendment or amendments hereto (the “Joint Filing Agreement”).  The Joint Filing Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.

 

Except as referenced above or as described in Item 4 hereof, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 or between such persons and any other person with respect to any securities of Intermountain.

 

Item 7.                Material to be Filed as Exhibits

 

Exhibit 1

 

Joint Filing Agreement, dated February 2, 2012, by and among Castle Creek Capital Partners IV, LP, Castle Creek Capital IV LLC, John M. Eggemeyer III and William J. Ruh.

 

 

 

Exhibit 2

 

Form of Amended and Restated Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to Intermountain’s Current Report on Form 8-K, filed on January 23, 2012).

 

 

 

Exhibit 3

 

Form of Warrant (incorporated by reference to Exhibit 4.2 to Intermountain’s Current Report on Form 8-K, filed on January 23, 2012).

 

 

 

Exhibit 4

 

Passivity Commitment Letter, from Castle Creek Capital Partners IV, LP (and certain affiliates) to the Board of Governors of the Federal Reserve System.

 

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SIGNATURE

 

After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: February 2, 2012

 

 

 

CASTLE CREEK CAPITAL PARTNERS IV, LP

 

 

 

 

 

 

By: CASTLE CREEK CAPITAL IV LLC,

 

 

     its general partner

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 

Title: Managing Principal

 

 

 

CASTLE CREEK CAPITAL IV LLC

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 

Title: Managing Principal

 

 

 

JOHN M. EGGEMEYER III

 

 

 

 

 

By:

/s/ John M. Eggemeyer

 

Name: John M. Eggemeyer III

 

 

 

WILLIAM J. RUH

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 

 

 

ATTENTION

 

Intentional misstatements or omissions of fact constitute Federal Criminal Violations (See 18 U.S.C. 1001).

 

12



 

EXHIBIT INDEX

 

Exhibit

 

Title

 

 

 

Exhibit 1

 

Joint Filing Agreement, dated February 2, 2012, by and among Castle Creek Capital Partners IV, LP, Castle Creek Capital IV LLC, John M. Eggemeyer III and William J. Ruh.

 

 

 

Exhibit 2

 

Form of Amended and Restated Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to Intermountain’s Current Report on Form 8-K, filed on January 23, 2012).

 

 

 

Exhibit 3

 

Form of Warrant (incorporated by reference to Exhibit 4.2 to Intermountain’s Current Report on Form 8-K, filed on January 23, 2012).

 

 

 

Exhibit 4

 

Passivity Commitment Letter, from Castle Creek Capital Partners IV, LP (and certain affiliates) to the Board of Governors of the Federal Reserve System.

 

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EX-99.1 2 a12-4099_1ex99d1.htm EXHIBIT 1

Exhibit 1

 

JOINT FILING AGREEMENT

 

The undersigned hereby agree that this statement on Schedule 13D dated February 2, 2012 with respect to the common stock of Intermountain Community Bancorp of Idaho is, and any amendments hereto signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended.

 

Dated: February 2, 2012

 

 

 

CASTLE CREEK CAPITAL PARTNERS IV, LP

 

 

 

 

 

 

By:   CASTLE CREEK CAPITAL IV LLC,

 

 

      its general partner

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 

Title: Managing Principal

 

 

 

CASTLE CREEK CAPITAL IV LLC

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 

Title: Managing Principal

 

 

 

JOHN M. EGGEMEYER III

 

 

 

 

 

By:

/s/ John M. Eggemeyer

 

Name: John M. Eggemeyer III

 

 

 

WILLIAM J. RUH

 

 

 

 

 

By:

/s/ William J. Ruh

 

Name: William J. Ruh

 


EX-99.4 3 a12-4099_1ex99d4.htm EXHIBIT 4

Exhibit 4

 

PASSIVITY COMMITMENT

 

Castle Creek Capital Partners IV, LP, Castle Creek Capital IV, LLC, Castle Creek Advisors IV, LLC, Pietrzak Advisory Corp., JME Advisory Corp., Ruh Advisory Corp., Legions IV Advisory Corp., and Mikesell Advisory Corp. (each, a “CCCP Acquirer”), and their subsidiaries and affiliates (collectively, “CCCP Acquirer Group”), will not, without the prior approval of the Board or its staff, directly or indirectly:

 

1.     Exercise or attempt to exercise a controlling influence over the management or policies of Intermountain Community Bancorp (“IMCB”), Sandpoint, Idaho, or any of its subsidiaries;

 

2.     Have or seek to have more than one representative of CCCP Acquirer Group serve on the board of directors of IMCB or any of its subsidiaries;

 

3.     Permit any representative of the CCCP Acquirer Group who serves on the board of directors of IMCB or any of its subsidiaries to serve (i) as the chairman of the board of directors of IMCB or any of its subsidiaries, (ii) as the chairman of any committee of the board of directors of IMCB or any of its subsidiaries, (iii) as a member of any committee of the board of directors of IMCB or any of its subsidiaries if the CCCP Acquirer Group representative occupies more than 25 percent of the seats on the committee,  (iv) as a member of a committee of the board of directors of IMCB if at any time such committee would have decisionmaking authority for policies or actions on managerial matters (other than decisions related to retaining third party consultants or advisers in connection with carrying out committee duties) unless (a) recommendations of such committee as to policy or actions on managerial matters are reviewed and approved or reviewed and ratified by the full board, (b) such committee is carrying out functions in accordance with a policy or parameters approved by the full board, or (c) Board staff authorizes service on a particular committee in light of all the facts and circumstances of the case, or (v) as a member of any committee if such representative has the authority or practical ability unilaterally to make, or block the making of, policy or other decisions that bind the board, any committee of the board, or management of IMCB;

 

4.     Have or seek to have any employee or representative of the CCCP Acquirer Group serve as an officer, agent, or employee of IMCB or any of its subsidiaries;

 

1



 

5.     Take any action that would cause IMCB or any of its subsidiaries to become a subsidiary of CCCP Acquirer Group;

 

6.     Own, control, or hold with power to vote securities that (when aggregated with securities that the officers and directors of the CCCP Acquirer Group own, control, or hold with power to vote) represent 25 percent or more of any class of voting securities of IMCB or any of its subsidiaries;

 

7.     Own or control equity interests that would result in the combined voting and nonvoting equity interests of the CCCP Acquirer Group and its officers and directors to equal or exceed 25 percent of the total equity capital of IMCB or any of its subsidiaries, except that, if the CCCP Acquirer Group and its officers and directors own, hold, or have the power to vote less than 15 percent of the outstanding shares of any classes of voting securities of IMCB, CCCP Acquirer Group and its officers and directors may own or control equity interests greater than 25 percent, but in no case more than 33.3 percent, of the total equity capital of IMCB or any of its subsidiaries;

 

8.     Propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or board of directors of IMCB or any of its subsidiaries;

 

9.     Enter into any agreement with IMCB or any of its subsidiaries that substantially limits the discretion of IMCB’s management over major policies and decisions, including, but not limited to, policies or decisions about employing and compensating executive officers; engaging in new business lines; raising additional debt or equity capital; merging or consolidating with another firm; or acquiring, selling, leasing, transferring, or disposing of material assets, subsidiaries, or other entities;

 

10.     Solicit or participate in soliciting proxies with respect to any matter presented to the shareholders of IMCB or any of its subsidiaries;

 

11.     Dispose or threaten to dispose (explicitly or implicitly) of equity interests of IMCB or any of its subsidiaries in any manner as a condition or inducement of specific action or non-action by IMCB or any of its subsidiaries; or

 

12.     Enter into any other banking or nonbanking transactions with IMCB or any of its subsidiaries, except that the CCCP Acquirer Group may establish and maintain deposit accounts with IMCB, provided that the aggregate balance of all such deposit accounts does not exceed $500,000 and that the accounts are

 

2



 

maintained on substantially the same terms as those prevailing for comparable accounts of persons unaffiliated with IMCB.

 

Each CCCP Acquirer also certifies that:

 

13.     CCCP Acquirer is not an affiliate of any other investor (excluding other CCCP Acquirers) in the proposed transaction (individually, each an “Investor,” and, collectively, the “Investors”);

 

14.     CCCP Acquirer has reached its decision to invest in IMCB independently from the other Investors;

 

15.     CCCP Acquirer is not managed or advised by an investment manager or investment advisor who performs the same services for any other Investor (excluding other CCCP Acquirers);

 

16.     CCCP Acquirer (including any subsidiary or affiliate of a CCCP Acquirer) has not engaged and will not engage as part of a group consisting of substantially the same entities as the Investors, in substantially the same combination of interests, in any additional banking or nonbanking activities or business ventures in the United States without prior consultation with the Board;

 

17.     CCCP Acquirer has not and will not enter into any agreements or understandings with any other Investor to act in concert for the purpose of exercising a controlling influence over IMCB or any of its subsidiaries, including, but not limited to, any agreements or understandings regarding the voting or transfer of shares of IMCB; and

 

18.     Any director representing CCCP Acquirer will not collude or conspire with any other directors or shareholders of IMCB with respect to the exercise of any director’s voting rights.  Nothing in this commitment shall limit a director’s ability to exercise its legitimate duties/rights as a director of IMCB, including the ability to consult with other directors and shareholders as appropriate.

 

The terms used in these commitments have the same meanings as set forth in the Bank Holding Company Act of 1956, as amended (“BHC Act”), and the Board’s Regulation Y.  For purposes of these commitments, “Investor” includes any subsidiary or affiliate of the Investor.

 

Nothing in these commitments releases the CCCP Acquirer Group from compliance with the Change in Bank Control Act and the Board’s regulations

 

3



 

thereunder for any subsequent acquisition or increase in the percentage ownership of any class of voting shares of IMCB.

 

Each CCCP Acquirer understands that these commitments constitute conditions imposed in writing in connection with the Board’s findings and decisions related to CCCP Acquirer Group’s acquisition of up to 9.9 percent of the voting shares and 33.3 percent of the total equity of IMCB, including a determination that no filing under the BHC Act is required for this transaction by CCCP Acquirer Group, and, as such, may be enforced in proceedings under applicable law.

 

4



 

IN WITNESS WHEREOF, each of the undersigned has caused this Passivity Commitment to be executed and delivered by its proper and duly authorized officer as of the date set forth above.

 

 

 

CASTLE CREEK CAPITAL PARTNERS IV, LP

 

 

 

 

 

By:

/s/ John M. Eggemeyer

 

 

 

Name: John M. Eggemeyer

 

 

 

Title: Managing Principal

 

 

 

 

 

CASTLE CREEK CAPITAL IV, LLC

 

 

 

 

 

By:

/s/ William J. Ruh

 

 

 

Name: William J. Ruh

 

 

 

Title: Managing Principal

 

 

 

 

 

CASTLE CREEK ADVISORS IV, LLC

 

 

 

 

 

By:

/s/ J. Mikesell Thomas

 

 

 

Name: J. Mikesell Thomas

 

 

 

Title: Principal

 

 

 

 

 

PIETRZAK ADVISORY CORP.

 

 

 

 

 

By:

/s/ John Pietrzak

 

 

 

Name: John Pietrzak

 

 

 

Title: President

 

 

 

 

 

JME ADVISORY CORP.

 

 

 

 

 

By:

/s/ John M. Eggemeyer

 

 

 

Name: John M. Eggemeyer

 

 

 

Title: President

 

 

[Signature Page to Passivity Commitment (CCCP)]

 



 

 

 

RUH ADVISORY CORP.

 

 

 

 

 

By:

/s/ William Ruh

 

 

 

Name: William Ruh

 

 

 

Title: President

 

 

 

 

 

LEGIONS IV ADVISORY CORP.

 

 

 

 

 

By:

/s/ Mark Merlo

 

 

 

Name: Mark Merlo

 

 

 

Title: President

 

 

 

 

 

MIKESELL ADVISORY CORP.

 

 

 

 

 

By:

/s/ J. Mikesell Thomas

 

 

 

Name: J. Mikesell Thomas

 

 

 

Title: President

 

 

[Signature Page to Passivity Commitment (CCCP)]