Attached files
EXHIBIT 4.1
FORM OF PROMISSORY NOTE
Principal ________________ U.S. Dollars ______________, 2011
FOR VALUE RECEIVED, First Mid-Illinois Bancshares, Inc., a
Delaware corporation ("MAKER"), hereby promises to pay to the order of
___________, a _______________ ("LENDER"), at the address specified
herein, or at such other place as Lender may direct by written notice
to Maker, the principal amount of _______________, together with
interest thereon at the rate of interest and in the manner set forth
herein.
1. BACKGROUND. Maker has previously accepted a subscription
from Lender for $__________ stated value of its Series C 8% Non-
Cumulative Perpetual Convertible Preferred Stock (the "PREFERRED
STOCK"), pursuant to that certain Subscription Agreement for Shares of
Preferred Stock, dated as of _______________, as amended (the
"SUBSCRIPTION AGREEMENT"). Lender has not yet been issued the
Preferred Stock subscribed for because of unanticipated delays in
applying for and obtaining the approval of the Federal Reserve Board,
which Lender must secure, along with certain other (a) individuals who
are members of the Lumpkin family and (b) entities controlled by, and
trusts created for the benefit of, individuals included in the Lumpkin
family (collectively, the "LUMPKIN FAMILY"), of which Lender is a
member. To avoid the members of the Lumpkin Family experiencing an
economic disadvantage, the Company has approved and authorized, and
Lender has agreed to, certain amendments to the Subscription Agreement
resulting in the release to the Company of the funds escrowed by
Lender for its subscribed shares of Preferred Stock and, in lieu
thereof, the issuance by the Company of this Promissory Note (the
"NOTE").
2. LOAN. This Note represents the repayment obligation of
Maker. Nothing contained herein or otherwise shall be construed to
place Lender and Maker in a relationship of partners, joint venturers,
principal and agent, or in any other relationship except that of
lender and borrower.
3. TERM; MATURITY. Maker shall repay the principal amount of
the Note in full on the date that is 60 calendar days after the date
hereof, or such later date if the term of the Note is extended
pursuant to this Section 3 (the "MATURITY DATE"), together with any
accrued and unpaid interest thereon. The members of the Board of
Directors of the Company who are not members of the Lumpkin Family and
who are not employed to act as a professional advisor to the Lumpkin
Family, may, in their sole discretion, extend the Maturity Date of the
Note for one or more additional 60 calendar day periods that will
begin concurrently with the expiration of the then-current term;
PROVIDED, HOWEVER, that if (a) the Federal Reserve Board rejects
Lender's purchase of Preferred Stock and Lender cannot assign this
Note pursuant to the terms of SECTION 9 of this Note (a "REJECTION")
or (b) Maker and Lender jointly agree in writing, in their sole
discretion, that it is more likely than not that Federal Reserve Board
approval of Lender's purchase of Preferred Stock will not be received
(an "AGREED ACTION"), then the Maturity Date shall be the next
business day following such Rejection or Agreed Action. The date, if
any, upon which any then current 60 calendar day term expires and a
new 60 calendar day term commences is referred to as an "EXTENSION
DATE." The time period from the date hereof to the Maturity Date is
referred to as the "NOTE TERM."
4. INTEREST. Interest shall accrue on the unpaid principal
balance of the Note at a rate equal to 8.00% per annum until the
principal amount is paid in full. The interest shall be payable on
the 30th and 60th calendar day after the date hereof or after any
applicable Extension Date during the Note Term.
5. PREPAYMENT. If the Federal Reserve Board's review of the
Lumpkin Family's Change in Bank Control Act of 1978 filing or other
regulatory filings required by the Federal Reserve Board results in
the Federal Reserve Board allowing Lender (or, pursuant to the terms
of SECTION 9 of this Note, Lender's assignee) to purchase the shares
of Preferred Stock Lender originally subscribed for, Lender or its
assignee may require that the Company prepay the principal amount of
this Note, plus any accrued but unpaid interest; PROVIDED Lender or
its assignee may use such prepaid principal amount for the sole
purpose of purchasing the shares of Preferred Stock subscribed for by
Lender.
6. METHOD OF PAYMENT. All payments of principal and interest
hereunder shall be paid by Maker in United States Dollars by wire
transfer of immediately available funds or in such other manner or at
such other place as Lender shall direct.
7. EVENTS OF DEFAULT. Each of the following constitutes an
"EVENT OF DEFAULT" hereunder: If Maker becomes insolvent or generally
fails to pay, or admits in writing Maker's inability to pay, debts as
they become due; or Maker applies for, consents to or acquiesces in
the appointment of a trustee, receiver or other custodian for Maker or
any property or assets of Maker, or makes a general assignment for the
benefit of creditors; or, in the absence of such application, consent
or acquiescence, a trustee, receiver or other custodian is appointed
for Maker or for a substantial part of the property or assets of Maker
and is not discharged within 60 days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding, is commenced in respect of Maker and if such case or
proceeding is not commenced by Maker it is consented to or acquiesced
in by Maker or if such case or proceeding is not vacated, stayed or
dismissed within 60 days of such commencement.
8. REMEDIES UPON AN EVENT OF DEFAULT. If an Event of Default
shall occur, then Lender may, at its option, exercise any one or more
of the following rights and remedies:
(a) Lender may declare the entire unpaid amount of this
Note to be immediately due and payable without presentment,
demand, protest or notice of any kind, all of which Maker
expressly waives;
(b) Lender shall be entitled to all of the rights and
remedies in accordance with, and as provided by, the terms of
this Note; or
(c) Lender may exercise from time to time any rights,
powers and remedies available to it under all applicable laws or
in equity.
In addition, Lender shall be entitled to recover from Maker all costs
and expenses, including reasonable attorneys' fees and disbursements
and court costs, incurred in enforcing its rights hereunder. The
rights and remedies of Lender stated herein are cumulative to and not
exclusive of any rights or remedies otherwise available to Lender.
9. ASSIGNABILITY. In order to facilitate Federal Reserve Board
approval of the applications and notices submitted by members of the
Lumpkin Family under the Change in Bank Control Act of 1978 with
respect to their subscriptions for the Preferred Stock, and only for
that purpose, Lender is permitted in its sole discretion to assign
this Note in whole or in part to any individual who is a member of the
Lumpkin Family, or to any corporation, partnership, limited
partnership, limited liability company, or other entity controlled by,
or any trust created for the benefit of, an individual who is included
in the Lumpkin Family, provided such individual, entity or trust is an
"Accredited Investor" as defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (a "NOTE
ASSIGNMENT"); provided, that in connection with any Note Assignment,
the assignee shall be required to accept the assignment of the
Subscription Agreement to it, and Maker and Lender hereby agree to
execute documentation necessary to consummate such assignment.
10. AMENDMENT. Subject to Section 3 hereof, this Note may be
amended, and the observance of any term hereof may be waived (either
retroactively or prospectively), with (and only with) the written
consent of Maker and Lender. Any amendment or waiver consented to as
provided in this Section 9 is binding upon Lender, each subsequent
holder of this Note and upon Maker without regard to whether this Note
has been marked to indicate such amendment or waiver. No such
amendment or waiver will extend to or affect any obligation, covenant
or agreement not expressly amended or waived or impair any right
consequent thereon. No course of dealing between Maker and Lender nor
any delay in exercising any rights hereunder shall operate as a waiver
of any rights of Lender. As used herein, the term "this Note" and
references hereto shall mean this Promissory Note as it may from time
to time be amended or supplemented.
11. NOTICES. All notices, requests and other communications
under this Note shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to
whom notice is to be given, or on the date of receipt by the party to
whom notice is to be given if transmitted to such party by telefax,
provided a copy if mailed as set forth below on date of transmission,
or on the third day after mailing if mailed to the party to whom
notice is to be given by registered or certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to Maker, to: First Mid-Illinois Bancshares, Inc.
Attn: William S. Rowland
1515 Charleston Avenue
Mattoon, Illinois 61938
If to Lender, to: ________________
________________
________________
12. MISCELLANEOUS.
(a) This Note shall in all respects be governed by and
construed in accordance with the laws of the State of Delaware.
(b) The undersigned hereby irrevocably consents to the
jurisdiction and venue of the courts of the State of Delaware
with respect to any and all actions related to this Note or the
enforcement of this Note and hereby irrevocably waives any and
all objections thereto.
(c) Lender shall not (by act, delay, omission or otherwise)
be deemed to have waived any of its rights or remedies hereunder,
or any provision hereof, unless such waiver is in writing signed
by Lender, and any such waiver shall be effective only to the
extent specifically set forth therein. A waiver by Lender of any
right or remedy under this Note on any one occasion shall not be
construed as a bar to or waiver of any such right or remedy which
Lender would otherwise have had on any future occasion.
(d) Wherever possible, each provision of this Note which
has been prohibited by or held invalid under applicable law shall
be ineffective to the extent of such prohibition or invalidity,
but such prohibition or invalidity shall not invalidate the
remainder of such provision or the remaining provisions of this
Note.
(e) Wherever in this Note reference is made to Maker or
Lender, such reference shall be deemed to include, as applicable,
a reference to their respective successors and assigns, legatees,
heirs, executors, administrators and legal representatives, as
applicable, and, in the case or Lender, any future holder of this
Note, in any case as permitted by this Note. Subject to Section
10, the provisions of this Note shall be binding upon and shall
inure to the benefit of such successors, assigns, holders,
legatees, heirs, executors, administrators and legal
representatives, as applicable.
[Signature Page Follows]
IN WITNESS WHEREOF, Maker has executed, acknowledged, sealed and
delivered this Note as of the day and year first above written.
FIRST MID-ILLINOIS BANCSHARES, INC.
By: ________________________
Name: ________________________
Title: ________________________
Acknowledged:
[To be executed by the following
Individual Subscribers:
Benjamin I. Lumpkin, Elizabeth L.
Celio, Christina S. Duncan, Margaret
K. Partridge-Hicks, Katherine S. Keon
Susan K. DeWyngaert, Pamela R. Keon
and Joseph J. Keon]
-------------------------------------
Name: _______________________________
[To be executed by the following
Entity Subscribers:
Lumpkin Family Foundation, Mary Lee
Sparks 1970 Trust, Anne S. Whitten Net
Income with Makeup Charitable Remainder
Unitrust, Barbara S. Federico Charitable
Remainder Unitrust, Christina S. Duncan
Charitable Remainder Unitrust, John W.
Sparks Charitable Remainder Unitrust
and Margaret L. Keon 1970 Trust]
By: __________________
Name: ________________
Title: ______________
