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  Staff Interpretation Letter 2013-1
Identification Number 1078
This is in response to your correspondence requesting an exception under Listing Rule 5635(f) from NASDAQ’s shareholder approval requirements with respect to proposed issuances of securities (the “Proposed Transaction”).

The Company, a bank holding company, conducts banking operations through its wholly owned subsidiary (the “Bank”). You stated that the Company has suffered significant operating losses for the fiscal years 2009, 2010 and 2011, and expects to report a loss for the fiscal year ended December 31, 2012. In its most recent annual report on Form 10-K, the Company’s independent auditor includes the qualification that there is substantial doubt concerning the Company’s ability to continue as a going concern.

While the Bank had been considered “adequately capitalized” by bank regulators prior to October 30, 2012, based on its September 30, 2012 Report of Condition and Income, the Bank was deemed “undercapitalized.” Furthermore, based on preliminary year end results for 2012, the Company expects the Bank’s Tier 1 leverage ratio to continue to decrease, and the Bank is expected to be classified as “significantly undercapitalized” based on its December 31, 2012 financial information. The Company’s losses are expected to continue in the first quarter of 2013, which could result in the Bank being deemed “critically undercapitalized” as of March 31, 2013, thus triggering the process to appoint a receiver or conservator of the Bank. As the Bank is the only material asset of the Company, the receivership of the Bank would cause the loss of any remaining value to the Company’s shareholders.

In the Proposed Transaction, the Company would issue common stock in connection with an exchange of currently outstanding preferred stock and a private placement. The preferred stock was issued to the United States Treasury Department (the “Treasury Department”) under the Troubled Asset Relief Program. The Treasury Department has agreed to exchange the preferred stock for common stock in an amount equal to a substantial discount to the principal amount plus accrued and unpaid dividends (the “Exchange”). Following the Exchange, the Company would conduct a private placement of common stock issuing shares to outside investors (the “Investors”) at the same price as the Exchange (the “Private Placement”). The Treasury Department will enter into separate agreements to sell the shares of common stock it receives in the Exchange to the Investors. In addition, as a condition imposed by the Investors, officers and directors of the Company (the “Insiders”) will purchase shares in the Private Placement on the same terms as the Investors. The common stock issued in the Exchange and in the Private Placement will be priced at a significant discount to the current market value. Finally, as promptly as practicable following the closing of the Private Placement, the Company will conduct a rights offering for shareholders, including the Insiders, that owned shares prior to the Exchange and Private Placement, which would allow these shareholders to purchase shares of common stock at the same price as the Exchange. It is anticipated that the Insiders’ total investment would be no more than 3% of the Proposed Transaction.

Given the Bank’s critical capital levels and regulatory pressures, the Company requires a substantial investment in order to return the Bank to a “well-capitalized” regulatory position. As a result, the proposed issuance of common stock is significantly greater than 20% of the pre-transaction total shares outstanding. You stated that the Company has pursued multiple alternative financing strategies for over one year, and that there are no realistic alternatives to the Proposed Transaction. The Company did not anticipate that obtaining shareholder approval would be a significant hurdle, but delays caused by ongoing negotiations about the Proposed Transaction, a hostile takeover that did not proceed, and delays in receiving regulatory approval, as well as the Company’s continuing losses, have all contributed to a situation in which the time needed to obtain shareholder approval would seriously jeopardize the financial viability of the Company. In addition, the Investors’ willingness to participate in the Proposed Transaction is conditioned on the transaction being sufficient to return the Bank to a “well-capitalized” position, necessitating an issuance of stock in excess of 20% of the outstanding shares. You stated that if the Proposed Transaction is not completed in the very near term, the Company will be forced to file for bankruptcy protection or bank regulatory authorities may appoint a receiver or conservator for the Bank, which you indicated would result in a complete loss for the existing shareholders.

The Company expects that the Proposed Transaction would return the Bank to the regulatory category of “well-capitalized” and prevent it from falling into receivership. In addition, the Company believes that following the closing of the Proposed Transaction, it would meet the requirements for continued listing on NASDAQ.

Without the requested exception, shareholder approval would be required pursuant to Listing Rule 5635(c) because the issuance of discounted common stock to the officer and directors would be considered equity compensation and Listing Rule 5635(d) because the issuance would exceed 20% of the pre-transaction outstanding shares at a price less than the greater of book or market value.

Based on our review of the circumstances described in your correspondence and on your representations regarding the Company’s financial condition, we have determined to grant the requested exception to the shareholder approval rules. This determination is based upon your representations that the Company needs to quickly proceed with the Proposed Transaction to avoid bankruptcy and the appointment of a conservator or a receiver for the Bank. In order to rely upon this exception, the Company must mail to all shareholders, not later than ten days before the issuance of any securities, a letter describing the Proposed Transaction (including the number of shares of common stock that could be issued and the consideration received) and alerting shareholders to the omission to seek their otherwise required approval. The letter must indicate that the Company is relying on a financial viability exception to the shareholder approval rules and that the audit committee, or a comparable independent body of the board of directors, has expressly approved reliance on this exception. The Company must also make a public announcement by filing a Form 8-K, where required by rules of the SEC, or by issuing a press release, disclosing the same information as required in the letter as promptly as possible but not later than ten days before the issuance of the securities.

As an additional matter, this exception applies only to the Proposed Transaction and not to any other issuances of securities which you stated may occur following the completion of the Proposed Transaction.

Publication Date*: 4/15/2013 Mailto Link Identification Number: 1078
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