1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE EXCHANGE ACT OF 1934
(Amendment No. 4)*
EPLUS INC.
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(Name of Issuer)
Common Stock, $.01 Par Value
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(Title of Class of Securities)
294268107
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(CUSIP Number)
Richard J. Perry, Jr., Esquire
Perry & Associates, P.C.
1826 Jefferson Place, N.W.
Washington, D.C. 20036
(202) 775-8109
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
June 30, 2003
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(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.[ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See 240.13d-7(b) 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).
Exhibit Index at page 21
Page 1 of 28
2
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY).
Hovde Capital Advisors LLC / 03-0430205
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS (See Instructions)
AF
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(1)
225,868 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
225,868 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
225,868 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.4%
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14. TYPE OF REPORTING PERSON
OO
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(1) The 225,868 shares beneficially owned by Hovde Capital Advisors LLC are as
Investment Manager to Financial Institution Partners III, L.P., Financial
Institution Partners, L.P., Financial Institution Partners, Ltd., and Financial
Institution Partners IV, L.P., the direct owners.
Page 2 of 28
3
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CUSIP NUMBER 294268107
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1. NAME OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY).
Financial Institution Partners III, L.P. / 52-2199979
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e). [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
116,192 shares
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9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
116,192 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
116,192 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
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14. TYPE OF REPORTING PERSON
PN
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Page 3 of 28
4
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CUSIP NUMBER 294268107
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1. NAME OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Financial Institution Partners, L.P. / 52-1899611
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e). [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
77,176 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
77,176 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
77,176 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
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14. TYPE OF REPORTING PERSON
PN
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Page 4 of 28
5
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CUSIP NUMBER 294268107
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1. NAME OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Financial Institution Partners, Ltd. / N/A
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e). [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: Cayman Islands
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
18,100 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
18,100 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,100 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
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14. TYPE OF REPORTING PERSON
OO
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Page 5 of 28
6
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Eric D. Hovde
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
AF/PF
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e). [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 32,824 shares
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(2)
678,668 shares
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9. SOLE DISPOSITIVE POWER
32,824 shares
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
678,668 shares
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
711,492 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.5%
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14. TYPE OF REPORTING PERSON
IN
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(2) Of the 711,492 shares beneficially owned by Eric D. Hovde, 386,800 of the
Shares beneficially owned are as managing member of Hovde Capital, L.L.C., the
General Partner to Financial Institution Partners II, L.P., the direct owner,
30,000 of the Shares beneficially owned are as managing member of Hovde
Acquisition II, L.L.C., 19,000 of the Shares beneficially owned are as trustee
for Hovde Financial, Inc. Profit Sharing Plan and Trust, 17,000 of the Shares
beneficially owned are as trustee for The Eric D. Hovde and Steven D. Hovde
Foundation, 32,824 of the Shares beneficially owned are held directly, and
225,868 of the Shares beneficially owned are as President, CEO and
Managing Member of Hovde Capital Advisors LLC, the Investment Manager to
Financial Institution Partners III, L.P., Financial Institution Partners, L.P.,
Financial Institution Partners, Ltd., and Financial Institution Partners IV,
L.P., the direct owners.
Page 6 of 28
7
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Steven D. Hovde
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
AF
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
USA
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(3)
678,668 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
678,668 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
678,668 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.2%
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14. TYPE OF REPORTING PERSON
IN
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(3) Of the 678,668 shares beneficially owned by Steven D. Hovde, 386,800 of the
Shares beneficially owned are as managing member of Hovde Capital, L.L.C., the
General Partner to Financial Institution Partners II, L.P., the direct owner,
19,000 of the Shares beneficially owned are as trustee for Hovde Financial, Inc.
Profit Sharing Plan and Trust, 30,000 of the Shares beneficially owned are as
managing member of Hovde Acquisition II, L.L.C., 17,000 are as trustee for The
Eric D. Hovde and Steven D. Hovde Foundation, and 225,868 are as the Chairman of
Hovde Capital Advisors LLC, the Investment Manager to Financial Institution
Partners III, L.P., Financial Institution Partners, L.P., Financial
Institution Partners, Ltd., and Financial Institution Partners IV, L.P., the
direct owners.
Page 7 of 28
8
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Financial Institution Partners II, L.P. / 36-4131559
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
386,800 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
386,800 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
386,800 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
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14. TYPE OF REPORTING PERSON
PN
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Page 8 of 28
9
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Hovde Capital, L.L.C. / 91-1825712
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
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3. SEC Use Only
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4. SOURCE OF FUNDS
AF
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Nevada
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH(4)
386,800 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
386,800 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
386,800 shares
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.1%
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14. TYPE OF REPORTING PERSON
OO
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(4) The 386,800 shares beneficially owned by Hovde Capital, L.L.C. are as the
General Partner to Financial Institution Partners II, L.P., the direct owner.
Page 9 of 28
10
-------------------------------------------------------------------------------
CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Hovde Acquisition II, L.L.C. / 88-0500145
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
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4. SOURCE OF FUNDS
WC
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Nevada
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
30,000 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
30,000 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,000 shares
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
Page 10 of 28
11
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CUSIP NUMBER 294268107
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
The Eric D. Hovde and Steven D. Hovde Foundation / 52-2107093
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: District of Columbia
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
17,000 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
17,000 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,000 shares
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
Page 11 of 28
12
-------------------------------------------------------------------------------
CUSIP NUMBER 294268107
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY)
Hovde Financial, Inc. Profit Sharing Plan and Trust / 52-1844197
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
3. SEC Use Only
-------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
-------------------------------------------------------------------------------
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) AND 2(e) [ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: District of Columbia
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NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
19,000 shares
----------------------------------------------------------------
9. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
19,000 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,000 shares
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
-------------------------------------------------------------------------------
Page 12 of 28
13
-------------------------------------------------------------------------------
CUSIP NUMBER 294268107
-------------------------------------------------------------------------------
1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS (ENTITIES ONLY).
Financial Institution Partners IV, L.P. / 52-2075038
-------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)X
(b)
-------------------------------------------------------------------------------
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) AND 2(e) [ ]
-------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized: State of Delaware
-------------------------------------------------------------------------------
NUMBER OF 7. SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY 0
EACH ----------------------------------------------------------------
REPORTING 8. SHARED VOTING POWER
PERSON WITH
14,400 shares
----------------------------------------------------------------
10. SOLE DISPOSITIVE POWER
0
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
14,400 shares
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,400 shares
-------------------------------------------------------------------------------
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES. [ ]
-------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%
-------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
-------------------------------------------------------------------------------
Page 13 of 28
14
Item 1. Security and Issuer
The class of security to which this statement relates is the common stock,
par value $0.01 per share (the "Shares"), of ePlus inc. (the "Issuer"). The
address of the principal executive offices of the Issuer is 400 Herndon Parkway,
Herndon, VA 20170.
Item 2. Identity and Background
The persons filing this statement are Financial Institution Partners II,
L.P., Financial Institution Partners III, L.P., Financial Institution Partners
IV, L.P., Financial Institution Partners, L.P., Financial Institution Partners,
Ltd. (the "Limited Partnerships"), Hovde Capital, L.L.C. (the "General
Partner"), Hovde Capital Advisors LLC (the "Investment Manager"), Hovde
Acquisition II, L.L.C., Hovde Financial, Inc. Profit Sharing Plan and Trust (the
"Plan"), The Eric D. Hovde and Steven D. Hovde Foundation (the "Foundation"),
Eric D. Hovde, and Steven D. Hovde who are collectively referred to herein
as the "Reporting Persons." The Limited Partnerships are Delaware limited
partnerships (with the exception of Financial Institution Partners, Ltd. which
is a Cayman Islands Exempted Company) formed for the purpose of investing in,
among other things, the equity securities of various financial institutions and
financial services companies. Hovde Capital, L.L.C., a Nevada limited liability
company, is the General Partner to Financial Institution Partners II, L.P., the
direct owner. Hovde Capital Advisors LLC, a Delaware limited liability company,
is the Investment Manager to Financial Institution Partners III, L.P., Financial
Institution Partners IV, L.P., Financial Institution Partners, L.P., and
Financial Institution Partners, Ltd., the direct owners. The Plan and the
Foundation are trusts organized in the District of Columbia. Hovde Acquisition
II, L.L.C., is a Nevada limited liability company.
Eric D. Hovde and Steven D. Hovde each hold beneficial interests in the
Shares through ownership of an interest in, and positions as officers, members
and/or trustees of the General Partner, the Investment Manager, Hovde
Acquisition II, L.L.C., the Plan and the Foundation. Eric D. Hovde holds
additional beneficial interests in the Shares through Shares owned directly.
Eric D. Hovde and Steven D. Hovde are also directors and executive officers of
Hovde Financial, Inc. ("Hovde Financial"). Hovde Financial does not beneficially
own any of the Shares. Steven D. Hovde disclaims beneficial ownership of the
shares held directly by Eric D. Hovde.
Attached as Schedule 1 hereto and incorporated by reference herein is a
list containing the principal business and the address of its principal business
and offices for the Limited Partnerships, the Plan, the Foundation, the General
Partner, Hovde Acquisition II, L.L.C., and the Investment Manager as well as
information required by (a) through (f) of this Item as to each executive
officer, director and/or controlling person of the General Partner and
Investment Manager who are Reporting Persons. The General Partner controls
Financial Institution Partners II, L.P., the direct owner, and the Investment
Manager controls Financial Institution Partners III, L.P., Financial Institution
Partners IV, L.P., Financial Institution Partners, L.P., and Financial
Institution Partners, Ltd., the direct owners.
None of the Reporting Persons or executive officers, directors or
controlling persons of the General Partner, the Investment Manager, Hovde
Acquisition II, L.L.C., the Plan or the Foundation have, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or 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 prohibiting or mandating activities subject to, federal or
state securities laws or finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Information regarding the source and amount of funds used by the Reporting
Persons in acquiring beneficial ownership of their Shares is set forth in
Schedule 2 attached hereto and incorporated herein by reference.
Item 4. Purpose of Transaction
On June 30, 2003, the Issuer filed a 10-K in which it disclosed that its
buyback (the "Buyback") had resulted in a reduction in the total Shares
outstanding. The Buyback, in combination with the Reporting Persons' acquisition
of Shares, resulted in a greater than one percent increase in the Reporting
Persons' beneficial ownership of the Shares. Although the Reporting Persons'
acquisition of Shares did not independently result in a "material change" as
defined in 17 C.F.R. Section 240.13d-2(a), the Reporting Persons are filing this
Schedule 13D/A in the event that the one percent increase in beneficial
ownership as a result of the combination of the Reporting Persons' acquisitions
and the Buyback is deemed to constitute a material change.
The Reporting Persons have acquired the Shares for investment purposes and
as set forth below:
Each of the Reporting Persons may independently acquire additional Shares
or dispose of some or all of its Shares.
The Reporting Persons expect to evaluate on an ongoing basis their
investment in the Issuer, and may independently from time to time acquire
additional Shares, dispose of Shares or formulate other purposes, plans or,
proposals regarding the Issuer or the Shares held by the Reporting Persons in
addition to those discussed above. Any such acquisitions or dispositions may be
made, subject to applicable law, in open market or privately negotiated
transactions or otherwise.
Except as described above, neither the Reporting Persons nor, to the
knowledge of the Reporting Persons, any of the persons named in schedule 1
hereto have any plans or proposals which relate to or would result in any of the
actions or transactions specified in clauses (a) through (j) of Item 4 of
Schedule 13D.
Page 14 of 28
15
Item 5. Interest in Securities of the Issuer
(a), (b) Schedule 3 hereto, which is incorporated by reference herein,
sets forth, as of June 30, 2003, information relating to the aggregate number of
Shares of the Issuer and the percentage of the outstanding Shares of the
Issuer as of such date (based upon information provided by the Issuer, there are
9,458,201 Shares outstanding as of that date) as to each of the Reporting
Persons. With respect to the Shares set forth on Schedule 3, by virtue of its
control over the Limited Partnerships, all decisions regarding voting and
disposition of the Shares beneficially owned by the Limited Partnerships are
made by Investment Manager, acting through its chief executive officer,
president, or managing members. As such, the Limited Partnerships and the
Investment Manager share voting and investment power with respect to the Shares.
Therefore, as a result of their ownership interest in, and positions as officers
and/or managers of the Investment Manager, Eric D. Hovde and Steven D. Hovde may
be deemed to have beneficial ownership of the Shares.
(c) Schedule 4 hereto, which is incorporated by reference herein,
describes, as of June 30, 2003, transactions in the Shares effected during
the past sixty (60) days.
(d) None.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
None.
Page 15 of 28
16
Item 7. Materials to be filed as Exhibits
Exhibit A - Consent Agreement pursuant to 17 C.F.R. 13d-1(f)(1)
Exhibit B - (Incorporated by reference to the Schedule 13D filed with the
Securities and Exchange Commission (the "Commission") on March
16, 1999)
Exhibit C - Customer Agreement between NationsBanc Montgomery Securities and
Financial Institution Partners II, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on March
16, 1999)
Exhibit D - Prime Broker Agreement between NationsBanc Montgomery Securities
and Financial Institution Partners II, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on March
16, 1999)
Exhibit E - Partnership Agreement between NationsBanc Montgomery Securities
and Financial Institution Partners II, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on March
16, 1999)
Exhibit F - Customer Agreement between NationsBanc Montgomery Securities and
Eric D. Hovde. (Incorporated by reference to the Schedule 13D
filed with the Commission on March 16, 1999)
Exhibit G - Prime Broker Agreement between NationsBanc Montgomery Securities
and Eric D. Hovde. (Incorporated by reference to the Schedule
13D filed with the Commission on March 16, 1999)
Exhibit H - Account Agreement between Banc of America Securities LLC and
Hovde Acquisition II, L.L.C. (Incorporated by reference to the
Schedule 13D/A filed with the Commission on January 20,2003)
Exhibit I - Prime Broker Agreement between Banc of America Securities LLC
and Hovde Acquisition II, L.L.C. (Incorporated by reference to
the Schedule 13D/A filed with the Commission on January 20,2003)
Exhibit J - Limited Liability Company Agreement between Banc of America
Securities LLC and Hovde Acquisition II, L.L.C. (Incorporated by
reference to the Schedule 13D/A filed with the Commission on
January 20,2003)
Exhibit K - Customer Agreement between NationsBanc Montgomery Securities and
Hovde Financial Inc. Profit Sharing Plan and Trust.
(Incorporated by reference to the Schedule 13D filed with the
Commission on March 16, 1999)
Exhibit L - Prime Broker Agreement between NationsBanc Montgomery Securities
and Hovde Financial Inc. Profit Sharing Plan and Trust.
(Incorporated by reference to the Schedule 13D filed with the
Commission on March 16, 1999)
Exhibit M - Customer Agreement between NationsBanc Montgomery Securities and
The Eric D. Hovde Foundation. (Incorporated by reference to the
Schedule 13D filed with the Commission on May 7, 1999)
Exhibit N - Prime Broker Agreement between NationsBanc Montgomery Securities
and The Eric D. Hovde Foundation. (Incorporated by reference to
the Schedule 13D filed with the Commission on May 7, 1999)
Exhibit O- Customer Agreement between NationsBanc Montgomery Securities and
Financial Institution Partners III, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on May
5, 2000)
Exhibit P- Prime Broker Agreement between NationsBanc Montgomery Securities
and Financial Institution Partners III, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on May
5, 2000)
Exhibit Q- Partnership Agreement between NationsBanc Montgomery Securities
and Financial Institution Partners III, L.P. (Incorporated by
reference to the Schedule 13D filed with the Commission on May
5, 2000)
Exhibit R - Options Agreement between Morgan Stanley & Co. Incorporated and
Financial Institution Partners, L.P. (Incorporated by reference
to the Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit S - Customer Prime Broker Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, L.P.
(Incorporated by reference to the Schedule 13D/A filed with the
Commission on January 20,2003)
Exhibit T - Master Securities Loan Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, L.P.
(Incorporated by reference to the Schedule 13D/A filed with the
Commission on January 20,2003)
Exhibit U - Account Control Agreement between Morgan Stanley Co.
and Financial Institution Partners, L.P. (Incorporated by
reference to the Schedule 13D/A filed with the Commission on
January 20,2003)
Exhibit V - Options Agreement between Morgan Stanley & Co. Incorporated and
Financial Institution Partners, Ltd. (Incorporated by reference
to the Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit W - Customer Prime Broker Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, Ltd.
(Incorporated by reference to the Schedule 13D/A filed with the
Commission on January 20,2003)
Exhibit X - Master Securities Loan Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, Ltd.
(Incorporated by reference to the Schedule 13D/A filed with the
Commission on January 20,2003)
Exhibit Y - Account Control Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, Ltd.
(Incorporated by reference to the Schedule 13D/A filed with the
Commission on January 20,2003)
Exhibit Z - Customer Agreement between Banc of America Securities LLC and
Financial Institution Partners IV, L.P.
Exhibit AA - Prime Broker Agreement between Banc of America Securities LLC and
Financial Institution Partners IV, L.P.
Exhibit BB - Partnership Agreement between Banc of America Securities
LLC
and Financial Institution Partners IV, L.P.
Signatures
After reasonable inquiry and to the best of his/its knowledge and belief,
each of the undersigned Reporting Persons certifies that the information set
forth in this statement with respect to him/it is true, complete and correct.
FINANCIAL INSTITUTION PARTNERS II, L.P., by its
General Partner, HOVDE CAPITAL, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE CAPITAL, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE ACQUISITION II, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE FINANCIAL, INC. PROFIT SHARING PLAN AND TRUST
By: /s/ Eric D. Hovde
-------------------------------------------------
Its: Trustee
THE ERIC D. HOVDE AND STEVEN D. HOVDE FOUNDATION
By: /s/ Eric D. Hovde
-------------------------------------------------
Its: Trustee
FINANCIAL INSTITUTION PARTNERS III, L.P., by its
General Partner, HOVDE CAPITAL, LTD.
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
FINANCIAL INSTITUTION PARTNERS, L.P., by its
General Partner, HOVDE CAPITAL IV, LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
FINANCIAL INSTITUTION PARTNERS, LTD., by its
General Partner, HOVDE CAPITAL OFFSHORE LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
FINANCIAL INSTITUTION PARTNERS IV, L.P., by its
General Partner, HOVDE CAPITAL LIMITED IV LLC
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE CAPITAL ADVISORS LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
ERIC D. HOVDE
/s/ Eric D. Hovde
-------------------------------------------------
STEVEN D. HOVDE
/s/ Steven D. Hovde
-------------------------------------------------
Dated: 07/02/03
Page 16 of 28
17
Schedule 1
INFORMATION RELATING TO REPORTING PERSONS
Principal Business and
Address of Principal Business
Name or Principal Office
---- ------------------------------
Financial Institution Limited partnership formed to make
Partners II, L.P. investments primarily in equity securities
Of financial institutions and financial
services companies.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
Hovde Capital, L.L.C. Limited liability company formed to serve as
the general partner of Financial Institution
Partners II, L.P.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Nevada
Hovde Acquisition II, L.L.C. Limited liability company formed to make
investments primarily in equity securities
of financial institutions.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Nevada
Hovde Financial, Inc. Profit Profit sharing plan for employees of Plan and
Sharing Trust Hovde Financial, Inc.
1826 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: District of Columbia
The Eric D. Hovde and Charitable trust formed to further
Steven D. Hovde Foundation research regarding and treatment of
Multiple sclerosis.
1826 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: District of Columbia
Financial Institution Limited partnership formed to
Partners III, L.P. make investments primarily in equity
securities of financial institutions and
financial services companies.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
Financial Institution Limited partnership formed to
Partners, L.P. make investments primarily in equity
securities of financial institutions and
financial services companies.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
Financial Institution Cayman Islands Exempted Company formed to
Partners, Ltd. make investments primarily in equity
securities of financial institutions and
financial services companies.
Bank of Bermuda (Cayman) Limited
36C Bermuda House, British American Centre
Dr. Roy's Drive, P.O. Box 513 GT
Georgetown, Grand Cayman, Cayman Islands
Organized: Cayman Islands
Hovde Capital Advisors LLC Limited liability company and registered
investment adviser formed to serve as an
investment manager.
1824 Jefferson Place, N.W.
Washington, D.C. 20036
Organized: State of Delaware
INFORMATION RELATING TO EXECUTIVE OFFICERS, DIRECTORS AND/OR CONTROLLING
PERSONS
NAME PRINCIPAL OCCUPATION
ADDRESS BUSINESS ADDRESS CITIZENSHIP
------- -------------------- -----------
Steven D. Hovde(4) Investment banker U.S.
1629 Colonial Parkway Hovde Financial, Inc.
Inverness, Illinois 60067 1629 Colonial Parkway
Inverness, Illinois 60067
Investment banking firm
Eric D. Hovde (5) Portfolio Manager U.S.
1826 Jefferson Place, N.W. Hovde Capital Advisors LLC
Washington, D.C. 20036 1824 Jefferson Place, N.W.
Washington, D.C. 20036
Registered Investment Adviser
-------------------------------------------------------------------------------
(4) Steven D. Hovde is affiliated with the following Reporting Persons: Chairman
of Hovde Capital Advisors LLC, Chairman of Hovde Capital, L.L.C.; Executive Vice
President, Treasurer of Hovde Acquisition II, L.L.C.; a trustee of both the Plan
and the Foundation.
(5) Eric D. Hovde is affiliated with the following Reporting Persons:
President, Chief Executive Officer and Managing Member of Hovde Capital Advisors
LLC; President and Chief Executive Officer of Hovde Capital, L.L.C.; President &
Assistant Treasurer of Hovde Acquisition II, L.L.C.; a trustee of both the Plan
and the Foundation.
Page 17 of 28
18
SCHEDULE 2
The following table sets forth the amount and source of funds used by each
Reporting Person in acquiring the Shares beneficially owned by it.
Amount
Originally
Total Financed/ Source of
Name Consideration Current Balance Funds
-------------------------------------------------------------------------------
Financial $3,344,458.87 $1,725,767.95/ Working Capital/
Institution $0 Margin Account(6)
Partners II, L.P.
Hovde Capital, $3,344,458.87 $1,725,767.95/ Working Capital
L.L.C. $0 of Affiliate/
Margin Account
of Affiliate(6)
Eric D. Hovde $6,019,721.10 $140,996.25/ Working Capital
$0 of Affiliates(7)
Hovde Acquisition, $ 263,778.00 $0 Working Capital
II, L.L.C. $0 Margin Account
Hovde Financial, $ 128,260.64 $64,130.32/ Working Capital
Inc. Profit Sharing $0 Margin Account(8)
Plan and Trust
The Eric D. Hovde $ 143,437.50 $71,718.75/ Working Capital
And Steven D. Hovde $0 Margin Account(9)
Foundation
Financial $ 1,056,671.47 $92,117.44/ Working Capital
Institution $0 Margin Account(10)
Partners III, L.P.
Financial $ 102,793.17 $0 Working Capital
Institution
Partners IV, L.P.
Financial $ 566,388.68 $0 Working Capital
Institution
Partners, L.P.
Financial $ 131,940.27 $0 Working Capital
Institution
Partners. Ltd.
Hovde Capital $1,857,793.59 $0 Working Capital
Advisors LLC Of Affiliates
Steven D. Hovde $5,737,728.60 $0 Working Capital
Of Affiliates
-------------------------------------------------------------------------------
(6) $1,725,767.95 was originally financed through a margin account with
NationsBanc Montgomery Securities at Federal Funds rate +5/8.
(7) $140,996.25 was originally financed through a margin account with
NationsBanc Montgomery Securities at Federal Funds rate +5/8.
(8) $64,130.32 was originally financed through a margin account with NationsBanc
Montgomery Securities at Federal Funds rate +5/8.
(9) $71,718.75 was originally financed through a margin account with NationsBanc
Montgomery Securities at Federal Funds rate +5/8.
(10) $92,117.44 was originally financed through a margin account with
NationsBanc Montgomery Securities at Federal Funds rate +5/8.
Page 18 of 28
19
SCHEDULE 3
The following table sets forth the number and approximate percentage of
Shares beneficially owned by each of the Reporting Persons. Each of the
Reporting Persons has shared power to vote or to direct the vote and to dispose
or to direct the disposition of the Shares of which each of them, respectively,
possesses beneficial ownership.
Approximate
Name Number of Shares Percentage
---- ---------------- -----------
Financial Institution 386,800 4.1%
Partners II, L.P.
Hovde Capital, L.L.C. 386,800 4.1%
Hovde Acquisition II, L.L.C. 30,000 0.3%
Hovde Financial, Inc. Profit 19,000 0.2%
Sharing Plan and Trust
The Eric D. Hovde Foundation 17,000 0.2%
Financial Institution 116,192 1.2%
Partners III, L.P.
Financial Institution 14,400 0.2%
Partners IV, L.P.
Financial Institution 77,176 0.8%
Partners, L.P.
Financial Institution 18,100 0.2%
Partners, Ltd.
Hovde Capital Advisors LLC 225,868 2.4%
Eric D. Hovde 711,492 7.5%
Steven D. Hovde 678,668 7.2%
-------------------------------------------------------------------------------
Aggregate Shares Held by 711,492 7.5%
Reporting Persons
Page 19 of 28
20
SCHEDULE 4
Description of Transactions in Shares Effected Within 60 Days.
The Reporting Persons have effected the following transactions in the Shares
within sixty (60) days and all subsequent days up to June 30, 2003
-------------------------------------------------------------------------------
Transaction Number of Transaction Transaction Broker
Date Shares Price Type
-------------------------------------------------------------------------------
Financial 05/14/03 700 $9.0168 Buy REDI
Institution
Partners,
L.P.
Financial 05/15/03 500 $8.9361 Buy REDI
Institution
Partners,
L.P.
Financial 05/19/03 700 $8.8830 Buy REDI
Institution
Partners,
L.P.
Financial 05/20/03 3,700 $8.9500 Buy FBRC
Institution
Partners,
L.P.
Financial 05/30/03 300 $9.033 Buy REDI
Institution
Partners,
L.P.
Financial 05/08/03 4,300 $8.933 Buy REDI
Institution
Partners III,
L.P.
Financial 05/13/03 5,995 $9.030098 Buy REDI
Institution
Partners III,
L.P.
Financial 05/14/03 2,500 $9.0168 Buy REDI
Institution
Partners III,
L.P.
Financial 05/15/03 800 $8.9361 Buy REDI
Institution
Partners III,
L.P.
Financial 05/16/03 800 $8.9342 Buy REDI
Institution
Partners III,
L.P.
Financial 05/19/03 1,146 $8.882993 Buy REDI
Institution
Partners III,
L.P.
Financial 05/20/03 5,800 $8.950 Buy FBRC
Institution
Partners III,
L.P.
Financial 05/22/03 1,165 $8.882996 Buy REDI
Institution
Partners III,
L.P.
Financial 05/23/03 332 $8.782982 Buy REDI
Institution
Partners III,
L.P.
Financial 05/30/03 300 $9.033 Buy REDI
Institution
Partners III,
L.P.
Financial 05/19/03 200 $8.8830 Buy REDI
Institution
Partners,
Ltd.
Financial 05/20/03 500 $8.950 Buy FBRC
Institution
Partners,
Ltd.
Financial 05/30/03 100 $9.0330 Buy REDI
Institution
Partners,
Ltd.
-------------------------------------------------------------------------------
Page 20 of 28
21
EXHIBIT INDEX
Page
Exhibit A- Consent Agreement to 17 C.F.R. 13d-1(f)(1) 22
Exhibit B - (Incorporated by reference to the Schedule 13D
filed with the Commission on March 16, 1999)
Exhibit C - Customer Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners II, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission on
March 16, 1999)
Exhibit D - Prime Broker Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners II, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission on
March 16, 1999)
Exhibit E - Partnership Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners II, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission on
March 16, 1999)
Exhibit F - Customer Agreement between NationsBanc
Montgomery Securities and Eric D. Hovde
(Incorporated by reference to the Schedule 13D
filed with the Commission on March 16, 1999)
Exhibit G - Prime Broker Agreement between NationsBanc
Montgomery Securities and Eric D. Hovde
(Incorporated by reference to the Schedule 13D
filed with the Commission on March 16, 1999)
Exhibit H - Account Agreement between Banc of America
Securities LLC and Hovde Acquisition II, L.L.C.
(Incorporated by reference to the Schedule 13D/A
filed with the Commission on January 20,2003)
Exhibit I - Prime Broker Agreement between Banc of America
Securities LLC and Hovde Acquisition II, L.L.C.
(Incorporated by reference to the Schedule 13D/A
filed with the Commission on January 20,2003)
Exhibit J - Limited Liability Company Agreement between
Banc of America Securities LLC and Hovde
Acquisition II, L.L.C. (Incorporated by reference
to the Schedule 13D/A filed with the Commission on
January 20,2003)
Exhibit K - Customer Agreement between NationsBanc
Montgomery Securities and Hovde Financial Inc.
Profit Sharing Plan and Trust. (Incorporated by
reference to the Schedule 13D filed with the
Commission on March 16, 1999)
Exhibit L - Prime Broker Agreement between NationsBanc
Montgomery Securities and Hovde Financial Inc.
Profit Sharing Plan and Trust. (Incorporated by
reference to the Schedule 13D filed with the
Commission on March 16, 1999)
Exhibit M - Customer Agreement between NationsBanc Montgomery
Securities and The Eric D. Hovde Foundation.
(Incorporated by reference to the Schedule 13D
filed with the Commission on May 7, 1999)
Exhibit N - Prime Broker Agreement between NationsBanc
Montgomery Securities and The Eric D. Hovde
Foundation. (Incorporated by reference to the
Schedule 13D filed with the Commission on
May 7, 1999)
Exhibit O- Customer Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners III, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission
on May 4, 2000)
Exhibit P- Prime Broker Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners III, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission
on May 4, 2000)
Exhibit Q- Partnership Agreement between NationsBanc
Montgomery Securities and Financial Institution
Partners III, L.P. (Incorporated by reference to
the Schedule 13D filed with the Commission
on May 4, 2000)
Exhibit R - Options Agreement between Morgan Stanley & Co.
Incorporated and Financial Institution Partners,
L.P. (Incorporated by reference to the Schedule
13D/A filed with the Commission on January 20,2003)
Exhibit S - Customer Prime Broker Agreement between Morgan
Stanley Co. Incorporated and Financial Institution
Partners, L.P. (Incorporated by reference to the
Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit T - Master Securities Loan Agreement between Morgan
Stanley Co. Incorporated and Financial Institution
Partners, L.P. (Incorporated by reference to the
Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit U - Account Control Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, L.P.
(Incorporated by reference to the Schedule 13D/A filed
with the Commission on January 20,2003)
Exhibit V - Options Agreement between Morgan Stanley & Co.
Incorporated and Financial Institution Partners,
Ltd. (Incorporated by reference to the Schedule 13D/A
filed with the Commission on January 20,2003)
Exhibit W - Customer Prime Broker Agreement between Morgan
Stanley Co. Incorporated and Financial Institution
Partners, Ltd. (Incorporated by reference to the
Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit X - Master Securities Loan Agreement between Morgan
Stanley Co. Incorporated and Financial Institution
Partners, Ltd. (Incorporated by reference to the
Schedule 13D/A filed with the Commission on January
20,2003)
Exhibit Y - Account Control Agreement between Morgan Stanley Co.
Incorporated and Financial Institution Partners, Ltd.
(Incorporated by reference to the Schedule 13D/A filed
with the Commission on January 20,2003)
Exhibit Z - Customer Agreement between Banc of America Securities 23
LLC and Financial Institution Partners IV, L.P.
Exhibit AA - Prime Broker Agreement between Banc of America 26
Securities LLC and Financial Institution Partners
IV, L.P.
Exhibit BB - Partnership Agreement between Banc of America
28
Securities LLC and Financial Institution Partners
IV, L.P.
-------------------------------------------------------------------------------
Page 21 of 28
22
EXHIBIT A
Consent Agreement Pursuant to 17 C.F.R. 13d-1(k)(1)(iii)
Each of the undersigned hereby consents and agrees to the filing on behalf
of each of them of the foregoing joint statement on Schedule 13D pursuant to 17
C.F.R. 13d-1(k)(1)(iii) with respect to his/its beneficial ownership of the
shares of the Issuer.
FINANCIAL INSTITUTION PARTNERS II, L.P., by its
General Partner, HOVDE CAPITAL, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE CAPITAL, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE ACQUISITION II, L.L.C.
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
HOVDE FINANCIAL, INC. PROFIT SHARING PLAN AND TRUST
By: /s/ Eric D. Hovde
-------------------------------------------------
Its: Trustee
THE ERIC D. HOVDE AND STEVEN D. HOVDE FOUNDATION
By: /s/ Eric D. Hovde
-------------------------------------------------
Its: Trustee
FINANCIAL INSTITUTION PARTNERS III, L.P., by its
General Partner, HOVDE CAPITAL, LTD.
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
FINANCIAL INSTITUTION PARTNERS, L.P., by its
General Partner, HOVDE CAPITAL IV, LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
FINANCIAL INSTITUTION PARTNERS IV, L.P., by its
General Partner, HOVDE CAPITAL LIMITED IV LLC
By: /s/ Eric D. Hovde
-------------------------------------------------
Eric D. Hovde
Its: Managing Member
FINANCIAL INSTITUTION PARTNERS, LTD., by its
General Partner, HOVDE CAPITAL OFFSHORE LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
HOVDE CAPITAL ADVISORS LLC
By: /s/ Richard J. Perry, Jr.
-------------------------------------------------
Richard J. Perry, Jr.
Its: Secretary
ERIC D. HOVDE
/s/ Eric D. Hovde
-------------------------------------------------
STEVEN D. HOVDE
/s/ Steven D. Hovde
-------------------------------------------------
Dated: 07/02/03
Page 22 of 28
23
EXHIBIT Z
BANC OF AMERICA SECURITIES LLC ACCOUNT AGREEMENT
This agreement sets forth the terms and conditions pursuant to which Banc of
America Securities LLC ("BAS") will maintain and Account for purchases and sales
of Securities and Other Property (as defined below) by the client executing this
agreement ("Client"). Client understands that, if the Account is a cash account,
the provisions of paragraphs 23 and 24 are not binding upon it unless Client
enters into a margin transaction, and if the Account is a commodities account,
the provisions of paragraph 16 shall not be applicable. Client agrees to notify
BAS promptly in writing of any material change in information that it supplied
when opening its Account, including, but not limited to, change of address,
change in investment objectives, and change in financial circumstances.
1. TRANSACTIONS WITH AND BY AFFILIATES. Certain securities and other assets
including, but not limited to, municipal, government and money market securities
purchased or sold by Client through BAS, may be purchased from or sold to an
affiliate of BAS which may act as an underwriter, broker, dealer or placement
agent for such securities and assets. BAS' bank or thrift affiliates may be
lenders to issuers of securities that BAS underwrites, in which case the
proceeds of offerings underwritten by BAS may be used for repayment of such
loans. Please refer to the disclosure documents relating to the securities for
additional information.
2. SIPC COVERAGE. BAS is a member of the Securities Investor Protection
Corporation ("SIPC") through which client accounts are protected in the event of
the firm's insolvency up to $500,000, including a maximum of $100,000 for free
cash balances. In addition securities and cash in your Account are protected up
to the value of your Account's total net equity. The term "net equity" means the
value of the securities and cash BAS owes you less any amount you owe BAS at the
time a liquidation proceeding is commenced. This additional protection is
provided by Travelers Casualty and Surety Company of America and is of the same
type and nature as provided by SIPC, but at a higher limit. Neither SIPC nor the
additional coverage is the same as or a substituted for FDIC deposit insurance,
and they do not protect against declines in the market value of your securities.
3. AUTHORIZATION TO OPEN CASH ACCOUNT. Client requests that BAS open a Cash
Account for it. Client appoints BAS as its agent for the purposes of buying and
selling securities in its Cash Account. Client authorizes BAS to open or close
its Account, to place and withdraw orders and to take such other actions to
protect itself in the event Client breaches any of its obligations. Client
understands that BAS may accept orders from the Client for execution by BAS or
others. Client acknowledges that BAS reserves the right in its sole discretion
to refuse or restrict Client's orders. If at any time BAS considers it necessary
for its protection,. It may in its discretion require Client to deposit cash or
collateral in Client's Account to assure due performance by Client of its open
contractual commitments. Client authorizes BAS to act upon Client's
instructions or those of its attorney-in-fact, designated by Client on a form
acceptable to BAS, given by telephone or telegraph, orally, or by facsimile
transmission or by any electronic service that provides access to BAS and agrees
that BAS may act upon and shall incur no liability in acting upon any such
instructions as reasonably understood by BAS, provided such instructions
reasonably appear genuine to BAS. Client agrees that this Agreement covers any
and all transactions heretofore executed for its Account by BAS.
4. ORDERS, DELIVERIES AND SETTLEMENTS. Client will not buy any security
through
its Cash Account unless there are, or by Settlement Date there will be,
sufficient funds in its Account to make full cash payment, and Client does not
contemplate selling such security before making such payment. Deposits will be
credited to Client's Account subject to collection. In giving orders to sell,
Client agrees that all "short" sale orders will be designated as "short" and all
"long" sale orders will be designated as "long". Client will not sell any
security designated as "long" through its Cash Account unless Client then owns
the security and it is either on deposit with BAS or by one (1) day before the
Settlement Date can and will be delivered (including any securities received as
a result of dividends, splits or similar events) to BAS in good deliverable
form, and the placing of such a "long" order shall constitute a representation
by Client that it will deliver such security to BAS at least one (1) day before
the Settlement Date. Unless Client specifically instructs otherwise, BAS will
treat all orders as market orders to be executed under current market
conditions. Client understands that when securities can be traded in more than
one marketplace, in the absence of Client's specific instructions, BAS may use
its discretion in selecting the markets in which to enter the order. Client will
not ask BAS to sell control or restricted securities, as defined by federal
securities laws, unless it has disclosed to BAS in writing that such securities
are control or restricted securities and unless Client is authorized to engage
in such a sale under applicable law. In connection with a sale of control or
restricted securities, Client agrees to provide BAS with such notices,
information, legal opinions, certifications or other assurances as BAS may
request. Client understands that BAS may in its sole discretion decline to
execute any securities transaction for Client's Account. If Client fails to
timely deliver securities sold in good deliverable form or to deposit timely the
total purchase price of securities purchased as provided by applicable law BAS
may, in its sole discretion and WITH OR WITHOUT NOTICE OR DEMAND, take such
steps as BAS deems appropriate either to complete or to liquidate the
transaction, and Client shall pay to BAS, UPON DEMAND, all expenses and losses
incurred by BAS in connection therewith. Furthermore, BAS will be entitled to
retain any gain or profit resulting from its actions after Client's failure to
timely deliver or pay for securities.
If Client elects to settle all transactions through its designated transaction
account ("transaction account") with an affiliated bank ("Bank"), Client agrees
that on Settlement Date BAS may debit that transaction account of payment of
securities purchased and credit Client's transaction account with the proceeds
from the sale of securities. Client agrees to have sufficient funds available
in that transaction account on Settlement Date for all securities purchased for
its Account. Client also agrees that on Settlement Date BAS may withdraw
securities from Client's designated safekeeping account ("safekeeping account")
maintained at the Bank to cover the sales of securities made by it through BAS
and deposit fully paid for securities purchased through BAS in Client's
safekeeping account. Client hereby authorizes the Bank to rely on a copy of
this agreement as authority for the Bank to make such transactions.
BAS reserves the right to go directly to the sponsor of any mutual fund or Unit
Investment Trust for purchases. Client understands that in these instances, the
sponsor will confirm directly with it.
BAS reserves the right to not accept limit orders in NASDAQ or over-the counter
securities in which it acts as a market maker.
Page 23 of 28
24
5. WRITTEN CONFIRMATION; COMMUNICATIONS. Confirmations of transactions and
statements of Client's Account shall be conclusive as to Client if not objected
to by it in writing within five (5) days (or such other period as required by
law) after the date on which such confirmations of transactions and statement
are received by it from BAS. The absence of Client's objection shall constitute
an acceptance by it of the terms and conditions of such transactions.
Communications may be sent to Client at the address set forth when it opened its
Account or at such other address as it instructs in writing. All communications
so sent, whether by mail, telegraph, facsimile transmission, overnight courier,
messenger or otherwise, shall be deemed received by Client, whether actually
received or not, as of the earlier of the date they are received by Client or
the business day following the day they are dispatched to Client. Client agrees
to waive all claims resulting from failure to receive such communications.
6. FEES AND CHARGES. BAS may charge commissions and other fees for execution
of transactions to purchase and sell Securities and Other Property, and Client
agrees to pay such commissions and fees at BAS' then prevailing rates. Client
also understands that such commissions and fee rates may be changed from time to
time without notice to it and Client agrees to be bound thereby. Client will
also pay BAS's fees for any special services that it requests or that are
required by law.
7. INFORMATION DISCLOSURE. Client hereby authorizes BAS to disclose
information to others and receive information from others, including credit
bureaus or others agencies, about it, its Account or its Account transaction (1)
if the purpose is to establish or maintain its Account or to complete
transactions, (2) in response to government agency or exchange regulations or
pursuant to inquiries or court orders or as otherwise provided by law or valid
legal process, and (3) in any suit, action or other proceeding in which
disclosure is necessary or appropriate in BAS' judgment to protect its interest.
Pursuant to Rule 14b-1 under the Securities Exchange Act of 1934, BAS may
disclose Client's name, address and securities positions to requesting companies
in which Client is a shareholder unless Client sends written objection to BAS.
8. DEFINITION OF SECURITIES AND OTHER PROPERTY. Securities and Other Property
shall include, but not be limited to, money, instruments, commodities, security
entitlements and securities of every kind and nature and all contracts and
actions relating thereto and all proceeds there from and all dividends and
interest thereon, whether for present or future delivery, now or hereafter held,
carried or maintained by BAS in or for any of Client's Accounts, now or
hereafter opened, including any Account(s) in which Client may have an interest.
9. SECURITY INTEREST. Client grants BAS a continuing security interest in,
lien on, and right of set-off with respect to, all Securities and Other Property
now or hereafter held or carried by BAS in Client's Accounts, including any
Securities and Other Property in transit or held by others on behalf of BAS, and
in any transaction or safekeeping accounts or money market funds that Client has
designated for BAS to debit and credit in connection with its Account, and all
proceeds of the foregoing, as collateral security for the payment and
performance of all its obligations to BAS, now existing or hereafter arising,
whether or not such obligations arise under this Agreement or any other
agreement between Client and BAS, together with all expenses of BAS in
connection therewith. If Client fails to pay or perform any obligation, or if
Client is in default, BAS shall have, in addition to the rights provided herein
or by other applicable law, all the rights and remedies provided to a secured
party under the Uniform Commercial Code as then in effect in the State of New
York. In enforcing its security interest, lien or right of setoff, BAS in its
sole discretion, may determine which Securities and Other Property are to be
bought or sold and the order in which they are to be sold and which contracts
are to be closed.
10. TRANSFER. BAS shall have the right to transfer Securities and Other
Property held by BAS from or to Client's Account whenever BAS, in its sole and
absolute discretion, considers such a transfer necessary for its protection.
11. IMPARTIL LOTTERY SYSTEM. When BAS holds, on Client's behalf, bonds, options
or preferred stock in street name or bearer form which are callable in part,
Client agrees to participate in the impartial lottery allocation system of the
called securities in accordance with the rules of the applicable exchange or
depositories.
12. NON-WAIVER; CHANGE OF TERMS. BAS' failure to insist at any time upon strict
compliance with this Agreement or with any of its terms shall not constitute a
waiver by BAS of any of its rights hereunder. Except as otherwise provided for
herein, no provision of this Agreement shall in any respect be waived or
modified. BAS MAY ADD, DELETE OR AMEND THE TERMS, CONDITIONS AND OTHER
PROVISIONS OF THIS AGREEMENT FROM TIME TO TIME BY WRITTEN NOTICE TO CLIENT. To
the extent this Agreement is inconsistent with any other agreement governing
Client's Account or any confirmation of a transaction, this Agreement shall
govern.
13. GOVERNING LAW. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK (without regard to any principles of conflicts of
law) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN.
14. SERVERABILITY. If any provision or condition of this Agreement shall be
held
to be invalid or unenforceable by any court, regulatory or self-regulatory
agency or body or arbitration tribunal, such invalidity or unenforceability
shall attach only to that provision or condition. The validity of the remaining
provisions and conditions shall not be affected thereby, and this Agreement
shall be carried out as if any such invalid or unenforceable provision or
condition was not contained herein.
15. LIMITATION ON LIABILITY. Client acknowledges and agrees that BAS shall not
be liable for any liability, loss or damage caused directly or indirectly by
events beyond the reasonable control of BAS, including, but not limited to
government restrictions, lockout, natural disaster (including earthquake), riot
or other civil disturbance, exchange or market ruling, suspensions of trading,
war, strike, interruption or other failure of transportation, communication, or
data processing services, or other conditions beyond its reasonable control.
Further, in acting hereunder, Client acknowledges and agrees that BAS shall not
be liable for any loss or other claim of injury with respect to Client's Account
except for its gross negligence or willful misconduct.
16. ARBITRATION. All disputes hereunder will be submitted to arbitration.
Client is aware that:
-Arbitration is final and binding on the parties.
-The parties are waiving their right to seek remedies in court, including the
right to jury trial.
-Pre-arbitration discovery is generally more limited than and different from
court proceedings.
-The arbitrator's award is not required to include factual findings or legal
reasoning and any party's right to appeal or to seek modification of rulings by
the arbitrators is strictly limited.
-The panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities industry.
ARBITRATION AGREEMENT
Any dispute with respect to Client's Account shall be subject to and governed by
the following ARBITRATION AGREEMENT:
To the extent permitted by law, any controversy arising out of or relating to
Client's Account, Client's relationship with BAS or this Agreement or the breach
thereof shall be submitted to arbitration conducted under the Constitution and
rules of the Board of Governors of the New York Stock Exchange, Inc. or the Code
of Arbitration Procedure of the National Association of Securities Dealers
("NASD"). An arbitration must be commenced by service upon the other party or
parties of a written demand for arbitration or a written notice of intention to
arbitrate, including selection of the arbitration tribunal. If Client initiates
the demand for arbitration and does not make such election by registered mail
addressed to BAS at its main office within five (5) days thereafter, then BAS
may make such election on Client's behalf. If BAS initiates arbitration, it may
select the arbitration tribunal. Judgment upon any award rendered by the
arbitrator(s) shall be final, and may be entered in any court having
jurisdiction. This ARBITRATION AGREEMENT does not constitute a waiver of
Client's right to a judicial forum in instances in which such a waiver should be
void under the applicable federal or state laws, including the Federal
Arbitration Act. The Federal Arbitration Act will apply to any dispute subject
to arbitration under this ARBITRATION AGREEMENT, notwithstanding any contrary
choice of law provision in this Agreement. Client specifically acknowledges and
agrees that in addition to and without waiver of this binding ARBITRATION
AGREEMENT, BAS shall be entitled to provisional remedies, including the remedies
of prejudgment writs of attachment, or injunction, available in any court having
jurisdiction.
No person shall bring a putative or certified class action to arbitration, nor
seek to enforce any pre-dispute arbitration agreement against any person who has
initiated in court a putative class action or who is a member of a putative
class who has not opted out of the class with respect to any claims encompassed
by the putative class action until:
i) the class certification is denied;
ii) the class is decertified; or
iii) the customer is excluded from the class by the court.
Such forbearance to enforce an agreement to arbitrate shall not constitute a
waiver of any rights under this Agreement except to the extent stated herein.
Page 24 of 28
25
17. APPLICABLE REGULATIONS. All transactions are subject to the constitution,
laws, rules, customs, usages and interpretations of the exchange or market and
the clearing house, if any, where executed and to applicable Federal and State
laws, and the rules of any government agency or financial industry self-
regulatory organization having authority with respect thereto.
18. BINDING EFFECT, ASSIGNMENT. This Agreement and its terms shall be binding
upon Client's successors, administrators, liquidator, receiver, trustee,
assignee, custodian, conservator or other similar official ("successors"). In
the event of Client's insolvency or bankruptcy whether or not any successors of
its assets shall have qualified or been appointed, until BAS has written notice
of its insolvency or bankruptcy BAS' successors and assigns, whether by merger,
consolidation or otherwise (and BAS may transfer Client's Account and this
Agreement to any such successors and assigns) WITHOUT NOTICE. Client may not
assign its rights or delegate duties under this Agreement without BAS' consent.
With prior notice to client, BAS may assign or transfer any or all of its
rights and obligations under this Agreement and Client's Account(s) to any other
direct or indirect wholly owned subsidiary of Bank of America Corporation that
is registered as a broker-dealer under the Securities Exchange Act of 1934.
19. ALL ACCOUNTS. THIS AGREEMENT SHALL COVER CLIENTS'S RELATIONSHIP WITH BAS,
INCLUDING INDIVIDUALLY AND COLLECTIVELY ALL ACCOUNTS THAT CLIENT MAY OPEN OR
REOPEN WITH BAS. CERTAIN ACCOUNTS, SUCH AS MARGIN ACCOUNTS OR OPTIONS ACCOUNTS,
ARE SUBJECT TO SEPARATE DOCUMENTATION CONTAINING ADDITIONAL REQUIREMENTS.
20. TERM. This Agreement shall become effective on its acceptance by BAS.
Client may close its Account by giving written notice to BAS. BAS may close
Client's Account by giving Client written notice. When Client's Account is
closed, BAS will return to Client, or follow its instructions for the transfer
of, any Securities and Other Property remaining in Client's Account and will no
longer accept orders for transactions after the date of closing subject to
Client having satisfied all obligations and paid all indebtedness owing to BAS.
21. PAYMENT FOR ORDER FLOW POLICY. BAS' policy is that it will not accept
remuneration for directing orders to particular brokers/dealers or market
centers for execution. Notwithstanding this policy, should BAS receive such
remuneration on any transaction, appropriate disclosure will be made.
22. RECORDING OF TELEPHONE CONVERSATIONS. ANY OF CLIENT'S TELEPHONE
CONVERSATIONS WITH BAS MAY BE RECORDED TO ASSURE ACCURACY. CLIENT CONSENTS TO
SUCH RECORDING.
23. MARGIN IN MARGIN ACOUNTS (NOT APPLICABLE TO CASH ACCOUNTS). Client hereby
agrees to maintain such margin in its margin and/or good faith account as BAS
may in its discretion require and Client agrees to pay forthwith on demand any
debit balance owing with respect to any such Account, and if not paid this shall
be a breach of this Agreement and BAS may take such action as it considers
necessary for its protection in accordance with this Agreement. Client
understands that even if BAS has a policy of giving clients notice of a margin
deficiency, BAS is not obligated to request additional margin from Client, and
there may be circumstances where BAS will liquidate securities and/or other
property in client's Account without notice to Client. Client understands it
will be charged interest on its debit balance which, if not paid at the close of
interest period will be added to the opening balance for the next interest
period. Consult the attached Truth-In-Lending disclosure statement for an
outline of BAS' interest policies.
24. CONSENT TO LOAN OR PLEDGE SECURITIES AND OTHER PROPERTY (NOT APPLICABLE TO
CASH ACCOUNTS). Client hereby authorizes BAS to lent either to itself or to
others any Securities and Other Property held by BAS in Client's margin and/or
good faith Account and to carry all such property in its general loans and such
property may be pledged, repledged, hypothecated or rehypothecated without
notice to Client, either separately or in common with other such property for
any mounts due to BAS thereon or for a greater sum, and BAS shall have no
obligation to retain a like amount of similar property in its possession and
control. BY SIGNING THIS AGREEMENT CLIENT ACKNOWLEDGES THAT THE SECURITIES AND
OTHER PROPERTY IN CLIENT'S MARGIN ACOUNT MAY BE LOANED TO BAS OR LOANED OUT TO
OTHERS AND THAT CLIENT HAS RECEIVED AND/OR REVIEWED A COPY OF THIS AGREEMENT.
25. REPRESENTATIONS AND WARRANTIES. Client represents and warrants that:
i). it has taken all necessary action to authorize the execution and delivery of
this Agreement;
ii).the person signing this Agreement on its behalf is duly authorized to do so;
iii). it has obtained all authorizations of any governmental body required in
connection with this Agreement and such authorizations are in full force and
effect; and
iv). the execution, delivery and performance of this Agreement will not violate
any law, ordinance, charter, by-lay, or rule applicable to it or any agreement
by which it is bound or by which any of its assets are affected.
26. RECEIPT OF TRUTH-IN-LENDING. Client hereby acknowledges receipt and review
of the attached Truth-In-Lending disclosure statement. Client understand that
interest will be charged on any debit balances in accordance with the methods
described in that statement or in any amendment or revision thereto that may be
provided to it. It is understood and agreed that the interest charge made to
Client's Account at the close of one charge period will be compounded, unless
paid; that is, the unpaid interest charge for previous periods will be added to
the opening balance for the next charge period, thereby becoming part of the
principal amount due bearing like interest.
27. CLEARANCE ACCOUNTS. If BAS carries Client's Account as clearing broker by
arrangement with another broker through whose courtesy Client's Account has been
introduced, then unless BAS receives from Client a written notice to the
contrary, BAS shall accept from such other broker, without any inquiry or
investigation by BAS, (i) orders for purchase and sale of Securities and Other
Property on margin or otherwise, and (ii) any other instructions concerning said
Account. Client understands BAS shall have no responsibility or liability to it
for any acts or omissions of such other broker, its officers, employees or
agents.
28. NOTICES AND REDEPTIONS. Notice or other communications, including margin
calls, delivered or mailed to the address given when opening Client's Account,
until BAS has received notice in writing of a different address, shall be deemed
to have been delivered to customer.
Client understands that equity securities, fixed income securities, mutual fund
shares and other securities:
-Are NOT insured by the FDIC or any other government entity;
-Are NOT deposits or other obligations of, or guaranteed by, Bank of America
Corporation or any of its affiliates (unless explicitly stated otherwise);
-Are subject to investment risks, including possible loss of the principal
amount invested.
Client certifies that it has read, understands and agrees specifically to the
terms set forth in this Agreement including, but not limited to, the Arbitration
Agreement, which can be found on pages 3 and 4 paragraph 16.
Financial Institution Partners IV, L.P.
______________________________________________________________________________
Name of Client
By: /s/ Richard J. Perry, Jr. 9/28/02 By:
______________________________________________________________________________
Signature of Signature of
Authorized Individual Date Authorized Individual Date
Richard J. Perry, Jr.
_______________________________________________________________________________
Typed or Printed Name of Typed or Printed Name of
Authorized Individual Authorized Individual
Secretary
_______________________________________________________________________________
Title of Authorized Individual Title of Authorized Individual
Page 25 of 28
26
EXHIBIT AA
Banc of America Securities LLC
PRIME BROKER AGREEMENT
In accordance with the requirements set forth in the January 25, 1994 No-Action
Letter of the Division of Market Regulation of the Securities and Exchange
Commission (the "No-Action Letter"), Banc of America Securities LLC ("BAS"), a
Delaware limited liability company, and each Customer on whose behalf this
agreement has been executed ("Customer"), hereby agree as follows.
1. This Agreement shall apply to all transactions in which BAS is given up
as the prime broker for Customer; i.e. transactions executed for Customer by
one or more executing brokers (each, an "Executing Broker"), which transactions
are submitted to BAS for clearance and settlement.
2. If Customer is the beneficial owner of an account managed by an Investment
Advisor registered with the Securities and Exchange Commission under the
Investment Advisors Act of 1940 or such other authorized agent, attorney in fact
or third party ("Investment Advisor"), then this Agreement has been executed on
Customer's behalf by such Investment Advisor. Each Customer on whose behalf this
Agreement has been executed is named on Schedule A hereto, as such Schedule may
be modified from time to time. Investment Advisor represents and warrants that
it has on file written authorization to execute agreements on behalf of each
Customer named on Schedule A and shall indemnify and hold BAS harmless from any
claim or claims arising from Investment Advisor's unauthorized execution of this
Agreement on any such Customer's behalf.
3. All Executing Brokers through whom Customer or Investment Advisor, as the
case may be, is initially authorized to execute prime brokerage transactions are
identified on Schedule B hereto. Prior to entering into a prime brokerage
transaction with an Executing Broker not identified on Schedule B. Customer or
Investment Advisor shall state in a writing sent via facsimile to BAS that it
desires to do so and confirm with BAS that a prime brokerage agreement has been
executed- between BAS and such Executing Broker. Upon execution of a prime
brokerage agreement between BAS and such Executing Broker, Schedule B hereto
shall be deemed automatically amended to include such Executing Broker and, only
thereafter, may Customer execute prime brokerage transactions with such
Executing Broker pursuant to this Agreement.
4. Customer or Investment Advisor, as the case may be, will promptly notify BAS
of each transaction executed by an Executing Broker on Customer's behalf, no
later than the close of business on trade date. At a minimum, such notice will
include the security involved, the number of shares or units, the price per
share or unit, whether the transaction was a long or short sale or a purchase,
the Executing Broker and the Executing Broker's commission.
5. On the next business day following trade date, BAS will send to Customer, or
if requested in writing, to Investment Advisor, notification confirming the
details of each transaction executed by Executing Broker on Customer's behalf,
based upon the information provided to BAS by Customer or Investment Advisor.
Such notification will include all information required for a confirmation
pursuant to Rule 10b-10 under the Securities Exchange Act of 1934 ("Rule 10b
10"), except the capacity of the executing broker, an average price
designation, and, in principal trades, the reported trade price and the
difference between that price and the net price to Customer, if this
information has not been provided to BAS by Customer or Investment Advisor. In
addition, the notification will disclose any transaction-based charges imposed
by BAS and any commission charged by Executing Broker.
6. BAS will settle transactions on Customer's behalf, unless, during the time
permitted for disaffirmations under the agreement then in effect between BAS
and Executing Broker, BAS disaffirms all unsettled transactions of Customer
that BAS determines to disaffirm in good faith and in accordance with reasonable
commercial standards. BAS will promptly send to Customer or Investment Advisor,
as applicable, a notice of cancellation of all disaffirmed transactions to
offset any notifications sent previously. BAS shall not be responsible for the
clearance and settlement of transactions that it disaffirms. Rather, Customer
shall be responsible and liable solely to Executing Broker(s) for the clearance
and settlement of such transactions.
Page 26 of 28
27
7. Without limiting the generality of the foregoing, if Customer is the
beneficial owner of an account managed by an Investment Advisor registered under
the Investment Advisor's Act of 1940, BAS, in its sole and absolute discretion,
may elect not to settle prime brokerage transactions on behalf of Customer if
Customer fails to maintain in its account with BAS minimum net equity of at
least $250,000 in cash or securities with a ready market as defined in Rule
15c3-l(c)(11) under the Securities Exchange Act of 1934. Otherwise, if Customer
is not the beneficial owner of an account managed by an Investment Advisor
registered under the Investment Advisor's Act of 1940, BAS, in its sole and
absolute discretion, may elect not to settle prime brokerage transactions on
behalf of Customer if Customer fails to maintain in its account with BAS minimum
net equity of at least $1,000,000 in cash or securities with a ready market as
defined in Rule 15c3-l(c)(11) under the Securities Exchange Act of 1934.
8. Furthermore, in the event net equity in Customer's account with BAS falls
below the minimum amount set forth in the No-Action Letter, Customer shall have
until 12:00 noon of the fifth business day following the date on which net
equity fell below the minimum amount to restore net equity to the level required
in the No-Action Letter. If Customer fails to restore net equity to the required
level, BAS shall notify each Executing Broker, by the same day's close of
business, that BAS is no longer acting as Prime Broker for Customer. As of the
day following such notice, BAS may not accept any prime brokerage transactions
commenced on behalf of Customer.
9. So long as this Agreement is in effect, BAS will be responsible to ensure
that all transactions which it has affirmed and not subsequently disaffirmed,
and is obligated to clear, are cleared between BAS and Customer, and
accordingly, appear on BAS's books in either a cash or margin account for
Customer and conform to Regulation T promulgated by the Board of Governors of
the Federal Reserve System and applicable self-regulatory organization margin
requirements.
10. Customer may instruct, in a writing separate from the prime brokerage
agreement between Customer and Executing Broker, Executing Broker to send
confirmations of transactions, as required by Rule l0b-10, to Customer in care
of BAS. Confirmations received by BAS on Customer's behalf are available to
Customer without charge, promptly upon request. The parties acknowledge that
providing such an instruction is not a condition to entering into this
Agreement, nor shall Customer be charged differential fees or otherwise receive
incentives for providing such an instruction.
11.BAS is hereby authorized to disclose Customer's name and address to each
Executing Broker identified on Schedule B. as such Schedule may be modified
from time to time, to enable such Executing Broker to establish on its books an
account for Customer to be used in the event transactions are disaffirmed by
BAS.
12.BAS will issue to Customer a statement of account at least on a quarterly
basis. The statement will include all transactions that occurred during the
statement period and the resultant security positions and money balances.
13.Customer represents and warrants that it is currently in compliance, and
during the term of this Agreement will remain in compliance, with all
applicable requirements of the No-Action Letter, and any supplements or
amendments thereto; including, in particular, the requirement that it execute
an agreement similar to this Agreement with each Executing Broker at any point
in time identified on Schedule B.
14.In the event of an inconsistency between any term or terms of this Agreement
and those of any Cash Account Agreement, Margin Agreement or Clearing Agreement
between the parties, this Agreement shall control to the extent of such
inconsistency.
15. This Agreement may be amended or modified only by BAS upon prior
written notice to Investment Advisor or Customer. Such amendment or modification
shall become effective immediately in the event Customer continues to accept
prime brokerage services from BAS after the date on which such notice is given.
16.This Agreement may be terminated by either party hereto upon prior written
notice. Any such termination shall not affect Customer's liabilities and
obligations to BAS with respect to transactions executed prior to such
termination.
17.This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict of law
principles thereof.
18. (a) Arbitration is final and binding on the parties.
(b) The parties are waiving their rights to seek remedies in court,
including the right to a jury trial.
(c) Pre-arbitration discovery is generally more limited than and different
from court proceedings.
(d) The arbitrators' award is not required to include factual findings or
legal reasoning and any party's right to appeal or seek modifications or
rulings by the arbitrators is strictly limited.
(e) The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities industry.
ANY CONTROVERSY BETWEEN BAS OR ANY OF ITS AFFILIATES OR ANY OF ITS OR THEIR
PARTNERS, OFFICERS, DIRECTORS OR EMPLOYEES ON THE ONE HAND, AND CUSTOMER AND/OR
INVESTMENT ADVISOR ON THE OTHER HAND, ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACCOUNTS ESTABLISHED HEREUNDER, SHALL BE SETTLED BY
ARBITRATION, IN ACCORDANCE WITH THE RULES THEN OBTAINING OF THE NEW YORK STOCK
EXCHANGE, INC. (OR SUCH OTHER ARBITRATION PANEL OR BOARD AS MAY BE REQUIRED BY
LAW). ANY AWARD OF THE ARBITRATORS SHALL BE FINAL, AND JUDGMENT UPON THE AWARD
RENDERED MAY BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement, WHICH IS
ACKNOWLEDGED TO CONTAIN A PRE-DISPUTE ARBITRATION CLAUSE, to be duly executed
and delivered as of the date set forth below.
Financial Institution Partners IV, L.P.
-----------------------------------------
CUSTOMER OR INVESTMENT ADVISOR ACCEPTED AND AGREED TO:
BANC OF AMERICA
SECURITIES LLC AS PRIME
BROKER
By: /s/ Richard J. Perry, Jr. By:
----------------------------------------- -------------------------
Richard J. Perry, Jr., Secretary
----------------------------------------- ----------------------------
Print Name and Title Print Name and Title
Date: 9/28/02 Date:
------ -------
Page 27 of 28
28
EXHIBIT BB
Banc of America Securities LLC - Montgomery Division
A Bank of America Company
________________________________
ACCOUNT NUMBER
________________________________
ACCOUNT NAME
PARTNERSHIP AGREEMENT
Ladies and Gentlemen:
In consideration of your opening and carrying a partnership account in the name
of Financial Institution Partners IV, L.P. a duly organized partnership (the
"Partnership") of which each of the undersigned is a general partner, the
undersigned jointly and severally agree that each of the following persons, to
wit:
Eric D. Hovde Richard J. Perry, Jr./ William Waller
-------------------------------- --------------------------------
Steven D. Hovde Michael Conniff; Jason Swanson
-------------------------------- --------------------------------
are hereby appointed the authorized agents and attorneys-in-fact of the
Partnership (the "Authorized Agents"), and shall have authority on behalf of the
Partnership, and for its account and risk, to buy, sell (including short sales),
tender, convert, exchange, trade and otherwise deal in, through you as brokers,
stocks, bonds, options and any other securities (on margin or otherwise) in
accordance with your terms and conditions for the Partnership account.
You are authorized to follow the instructions of the Authorized Agents in every
respect concerning said account, and to deliver to them on behalf of the
Partnership account all demands, notices, confirmations, reports, statements of
accounts, and communications of every kind; to deliver to them on behalf of the
Partnership account money, securities and property of every kind, and to follow
the orders of said Authorized Agents regarding the same. The Authorized Agents
are hereby authorized to execute and deliver on behalf of the Partnership
account agreements relating to any of the foregoing matters and to terminate or
modify same or waive any of the provisions thereof; and generally to deal with
you on behalf of the Partnership account as fully and completely as if each
alone were interested in said accounts, all without notice to the other or
others interested in said account.
This Authorization and indemnity is in addition to, and in no way limits or
restricts, any rights which you have under any other agreement or agreements
between you and the undersigned, or any of them, now existing or hereafter
entered into, and is binding on the Partnership and its legal representatives,
successors and assigns. This authorization and indemnity is also a continuing
one and shall remain in full force and effect until revoked by a written notice,
addressed to you and delivered to you at your principal office in San Francisco.
No such revocation shall affect any liability arising out of any transaction
initiated prior to such revocation. The undersigned, jointly and severally agree
to indemnify and hold you harmless from and to pay you promptly on demand any
debit balance in said account, including any loss or debit balance resulting
from transactions initiated prior to receipt of such revocation.
The undersigned hereby certify that the general and/or limited partners of said
Partnership are as follows: *
Name N/A Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
*or attach signature page(s) of partnership
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
Name Occupation
------------------------- ------------------------
The undersigned further authorizes you, in the event of death or retirement of
any of the general and/or limited partners of said Partnership, to take such
proceedings, require such papers, retain such portions or restrict transactions
in said account as you may deem advisable to protect you against any liability,
penalty or loss under any present or future laws or otherwise. It is further
agreed that in the event of the death or retirement of any member of the said
Partnership the remaining members will immediately cause you to be notified of
such fact.
This Authorization and indemnity and its enforcement shall be governed by the
laws of the State of New York, shall cover individually and collectively all
accounts covered by this agreement and authorization which the undersigned may
open or reopen with you, and shall inure to the benefit of your present
organization, and any successor organization, irrespective of any change or
changes of any kind of the personnel thereof for any cause whatsoever, and of
the assigns of your present organization or any successor organization.
Customer consent to loan or pledge of securities and other property (not
applicable to cash accounts): each of the undersigned has signed the enclosed
Customer's Agreement and Customer's Loan Consent which are intended to cover, in
addition to the provisions hereof, the terms upon which the Partnership is to be
carried.
Very truly yours,
Dated: 9/28/02 By: /s/ Eric D. Hovde
General Partner(s)
_______________________________
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