Exhibit
10.1


 


STOCK PURCHASE AGREEMENT


 


THIS
STOCK PURCHASE AGREEMENT (“Agreement”) is made as of April 21, 2010, by
and between VIST FINANCIAL CORP., a Pennsylvania business corporation (“Seller”),
and EMERALD ADVISERS, INC., a Pennsylvania business corporation (“Buyer”).


 


WHEREAS,
the Board of Directors of Seller proposes to sell to Buyer, and Buyer proposes
to purchase from Seller, 322,000 shares of common stock of Seller,
$5.00 par value per share (“Seller Common Stock”), as set forth below, for
an aggregate purchase price of $2,576,000.00, in cash; and


 


WHEREAS,
the Board of Directors of Seller believes that the sale of the shares of Seller
Common Stock, under the terms and conditions set forth in this Agreement, is in
the best interests of the Seller;


 


NOW,
THEREFORE, in consideration of the mutual promises and covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, mutually agree as follows:


 


1.  Purchase and Sale of Shares.


 


1.1 
Subject to the terms and conditions set forth herein, at the Closing (as
defined in Section 2.1 hereof), Seller shall sell, transfer, assign and
deliver unto Buyer, and Buyer shall purchase from Seller, 322,000 shares of
Seller Common Stock (each, a “Share”, and collectively, the “Shares”).


 


1.2  At
the Closing, Buyer shall pay to Seller a purchase price (the “Purchase Price”)
$2,576,000.00, in cash, in consideration of its purchase of the Shares.


 


2.  The Closing.


 


2.1 
The closing under this Agreement (the “Closing”) shall take place at
10:00 a.m. at the main office of Seller, 1240 Broadcasting Road,
Wyomissing, Pennsylvania, or at such other place as the parties shall agree in
writing, on a date following the sixth (6th) trading day after the
satisfaction or waiver (subject to applicable law) of the latest to occur of
the conditions set forth in Sections 8 and 9 (other than those conditions
that by their nature are to be satisfied or waived at Closing), or such other
date mutually agreed upon by the parties (the “Closing Date”).


 


2.2 
Immediately prior to the Closing (and as a condition of Buyer’s
obligations to purchase the Shares and otherwise perform its obligations under
this Agreement), Seller shall deliver to Buyer a certificate from the President
and Chief Executive Officer of Seller certifying that (a) as of such date,
to his knowledge, the representations and warranties of Seller set forth herein
are true and accurate in all respects and (b) that there has not been
since the execution of this Agreement any material adverse change to Seller’s
business.


 


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2.3 
Immediately prior to the Closing (and as a condition of Seller’s
obligations to deliver the Shares and otherwise perform its obligations under
this Agreement), Buyer shall deliver to Seller a certificate from the President
and Chief Investment Officer of Buyer certifying as to Buyer that as of such
date, to his knowledge, the representations and warranties of Buyer set forth
herein are true and accurate in all material respects.


 


2.4  At
the Closing, Seller shall deliver to Buyer a certificate for the Shares, duly
registered in the name of Buyer.


 


2.5  At
the Closing, Buyer shall deliver to Seller the Purchase Price by wire transfer
of immediately available funds.


 


3.  Representations, Warranties and Covenants
of Seller.  In addition to the
warranties, representations and covenants of Seller contained elsewhere herein,
Seller hereby warrants, represents and covenants to Buyer as follows:


 


3.1 
Seller is a corporation organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania with full corporate power
and authority to carry on its business as now conducted.


 


3.2 
The authorized common stock of Seller consists of 20,000,000 shares
of Seller Common Stock, of which  5,855,976 shares were issued and
outstanding as of the date of this Agreement . 
The authorized preferred stock of Seller consists of 5,000,000 shares
of serial preferred stock, par value $.01 per share (Seller Preferred Stock”),
of which 25,000 shares of Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, are issued and outstanding to the U.S. Department of
Treasury as of the date of this Agreement. 
Other than the Seller Common Stock and Seller Preferred Stock, there are
no other authorized classes of equity securities of Seller.  There are no outstanding subscriptions,
options, warrants, debt instruments or other agreements obligating Seller to
issue, sell or otherwise dispose of any shares of Seller Common Stock, except
for shares of Seller Common Stock issuable upon exercise of employee stock
options outstanding under existing employee benefit plans, shares of Seller
Common Stock issuable to the United States Department of Treasury upon the
exercise of outstanding warrants to purchase Seller Common Stock in connection
with the TARP Capital Purchase Program, and 322,000 shares of Seller Common
Stock issuable to another investor pursuant to an agreement dated even date
herewith.  As of the Closing, the Shares
are being sold, and (upon receipt by the Buyer at the Closing) will be, free
and clear of all liabilities, debts, obligations, encumbrances, leases,
indebtedness, liens, charges, and pledges, of whatever nature, whether fixed or
contingent, disclosed or undisclosed, foreseen or unforeseen, as of the date of
this Agreement.


 


3.3 
Seller possesses the requisite corporate power and authority to execute
and deliver this Agreement and perform all of its obligations hereunder, and no
additional consent or approval of any other person, entity or governmental
authority is required therefor.  This
Agreement is a valid and binding obligation of Seller and is fully enforceable
against it in accordance with its terms and conditions.


 


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3.4 
The execution and delivery of this Agreement by Seller will not violate
any law, regulation, decree, writ, order or injunction which, collectively,
would have a material adverse effect upon the Seller’s ability to consummate
the transactions contemplated hereby.


 


3.5 
Seller has made all necessary filings with all applicable federal, state
and local authorities and/or regulatory bodies, and has complied with all applicable
laws, in each case with respect to the transaction contemplated herein, and
Seller will take all such further actions as are necessary or appropriate to
cause the transaction contemplated hereby to comply with all applicable law.


 


3.6 
The representations and warranties set forth herein are accurate in all
material respects.  None of the periodic
and other reports of the Seller filed with the SEC under the Exchange Act since
January 1, 2007, contain any misstatement of a material fact or omit to state
a material fact necessary to prevent the statements made herein or therein from
being misleading.  Since the filing of
Seller’s most recent Annual Report on Form 10-K with the Securities and
Exchange Commission (“SEC”), there has been no material adverse change to
Seller’s financial condition or its results of operations of the kind required
to be disclosed in filings with the SEC under applicable federal securities
laws that have not been so disclosed by Seller.


 


4.  Representations, Warranties and Covenants
of Buyer.  In addition to the
warranties, representations and covenants of Buyer contained elsewhere herein,
Buyer hereby warrants, represents and covenants to Seller as follows:


 


4.1 
Buyer is a registered investment advisor under the Securities Exchange
Act of 1934 and a corporation organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania with full corporate power
and authority to carry on its business as now conducted.


 


4.2 
Buyer possesses all requisite power and authority to execute and deliver
this Agreement and perform all of its obligations hereunder, and no additional
consent or approval of any other person, entity or governmental authority is
required therefor.  This Agreement is a
valid and binding obligation of Buyer and is fully enforceable against it in
accordance with its terms and conditions.


 


4.3 
Buyer is an “accredited investor,” as that term is defined in Rule 501
of Regulation D under the Securities Act of 1933, as amended (the “Securities
Act”) and is a sophisticated investor as described in Rule 506(b)(2)(ii) of
Regulation D under the Securities Act. 
Buyer is not an officer, director or “affiliate” (as that term is
defined in Rule 405 promulgated under the Securities Act) of Seller.


 


4.4 
The execution and delivery of this Agreement by Buyer will not violate
any law, regulation, decree, writ, order or injunction which, collectively,
would have a material adverse effect upon the Buyer’s ability to consummate the
transactions contemplated hereby.


 


4.5 
The representations and warranties made here in are accurate in all
material respects.  Buyer will have the
funds to pay the Purchase Price as of the Closing Date.


 


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4.6 
Buyer has requested and received such information and has made such due
diligence investigation, including having access to the books and records of
Seller and its affiliated companies, as Buyer has deemed pertinent to its
consideration of the purchase of the Shares. 
Buyer has not been furnished any offering literature or prospectus.  Buyer has carefully reviewed the publicly
available information regarding Seller and the information provided to Buyer by
Seller and is thoroughly familiar with the existing and proposed business
operations, management and financial condition of Seller.  Buyer acknowledges and understands (i) the
risks involved in this investment, including the speculative nature of the
investment, (ii) the financial hazards involved in this investment,
including the risk of losing the entire investment in the Seller Common Stock,
and (iii) the tax consequences of this investment to Buyer.  Buyer has consulted with its own legal,
accounting, tax, investment and other advisers for legal, tax treatment or
investment advice with respect to the merits and risk of an investment in
Seller Common Stock, the transactions contemplated by this Agreement or the
securities laws of any jurisdiction.


 


4.7 
Buyer acknowledges and agrees that (i) the Shares are not savings
accounts or deposits and are not insured or guaranteed by the FDIC or any other
government agency, (ii) there are significant risks incident to an
investment in the Shares, and (iii) no Federal or state governmental
agency has passed upon or will pass upon the offer or sale of the Shares or has
made or will make any finding or determination as to the fairness of this
investment.


 


5.  Notices.  All notices or other communications required
or permitted to be given hereunder shall be in writing and shall be by certified
mail, return receipt requested, addressed as set forth below or as may be
otherwise specified by notice meeting the requirements of this paragraph.  All notices shall be deemed given when mailed
pursuant to the foregoing sentences. 
Notices shall be addressed as follows:


 


If to
Seller:


 


Robert D. Davis

President and Chief Executive Officer

VIST Financial Corp.

1240 Broadcasting Road

Wyomissing, Pennsylvania  19610

Telephone:  (610) 603-07212

Facsimile No.:  (610) 603-2050


 


With a
copy to:


 


David W. Swartz, Esq.

Stevens & Lee, P.C.

111 N. 6th Street, P.O. Box 679

Reading, Pennsylvania  19603-0679

Telephone:  (610) 478-2184

Facsimile No.: (610) 988-0815


 


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If to Buyer:


 


Kenneth G. Mertz II

President and Chief Investment Officer

Emerald Advisers, Inc.

1703 Oregon Pike

P.O. Box 1066

Lancaster, Pennsylvania  17605-0666

Telephone:  (717) 396-1116

Facsimile No.:  (717) 735-0088


 


6.  Seller Covenants.  In connection with the registration of the
Shares, Seller agrees to:


 


6.1 
Prepare promptly, and file with the SEC no later than fifteen (15)
days after the date hereof, a registration statement on Form S-3, or any
similar registration statement, of Seller filed with SEC under the Securities
Act with respect to the Shares (the “Registration Statement”), and
thereafter use all diligent efforts to cause such Registration Statement
relating to the Shares to become effective within five (5) business
days after notice from the SEC that such Registration Statement may be declared
effective, and keep the Registration Statement effective at all times until the
earliest of (i) the date when Buyer may sell all Shares under Rule 144
promulgated under the Securities Act without volume limitations, or (ii) the
date Buyer no longer owns any of the Shares (collectively, the “Registration
Period”), which Registration Statement (including any amendments or
supplements, thereto and prospectuses contained therein) shall not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.


 


6.2 
Prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to keep
the Registration Statement effective at all times during the Registration
Period, and, during the Registration Period, and to comply with the provisions
of the Securities Act with respect to the disposition of all Shares of Seller
covered by the Registration Statement until the expiration of the Registration
Period.


 


6.3 
Unless available to Buyer without charge through EDGAR, the SEC’s
website or Seller’s website, furnish to Buyer, (i) promptly after the same
is prepared and publicly distributed, filed with the SEC, or received by
Seller, one (1) copy of the Registration Statement, each preliminary
prospectus and the prospectus, and each amendment or supplement thereto, and (ii) such
number of copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents, as Buyer may
reasonably request in order to facilitate the disposition of the Shares owned
by Seller.


 


6.4 
Use its commercially reasonable efforts to cause all of the Shares
covered by the Registration Statement to be listed on the national securities
exchange on which securities of the same class or series issued by Seller are
then listed.


 


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7.  Buyer Covenants.  In connection with registration of the
Shares, Seller shall have the following obligations:


 


7.1  It shall be a
condition precedent to the obligations of Seller to complete the registration
pursuant to this Agreement with respect to the Shares of Buyer that Buyer shall
timely furnish to Seller such information regarding itself as shall be
reasonably required to effect the registration of such Shares and shall timely
execute such documents in connection with such registration as Seller may
reasonably request.


 


7.2  Buyer by such
Buyer’s acceptance of the Shares agrees to cooperate with Seller as reasonably
requested by Seller in connection with the preparation and filing of the
Registration Statement hereunder.


 


8.  Mutual Conditions to Closing.


 


8.1 
All necessary and required consents and approvals of any regulatory body
or agency shall have been obtained and all notice and waiting periods required
by law to pass after receipt of such approvals or consents shall have passed,
and all conditions to consummation of the transactions set forth in this
Agreement shall have been satisfied.


 


8.2 
There shall be no actual or threatened causes of action, investigations
or proceedings (i) challenging the validity or legality of this Agreement
or the consummation of the transactions contemplated by this Agreement, or (ii) seeking
damages in connection with the transactions contemplated by this Agreement, or (iii) seeking
to restrain or invalidate the transactions contemplated by this Agreement, which,
in the case of (i) through (iii), and in the reasonable judgment of the
parties, based upon advice of counsel, would have a material adverse effect
with respect to the interests of the parties to this Agreement.  No judgment, order, injunction or decree
(whether temporary, preliminary or permanent) issued by any court or agency of
competent jurisdiction or other legal restraints or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect.  No statute, rule, regulation,
order, injunction or decree (whether temporary, preliminary or permanent) shall
have been enacted, entered, promulgated or enforced by any regulatory authority
that prohibits, restricts, or makes illegal the consummation of the transactions
contemplated in this Agreement.


 


8.3  The
Registration Statement, and any amendment or supplement thereto, shall have
previously become effective with respect to the Shares, and such Registration
Statement shall be effective on or immediately prior to the Closing Date and (i) neither
Seller nor Buyer shall have received notice that the SEC has issued or intends
to issue a stop order with respect to such Registration Statement or that the
SEC otherwise has suspended or withdrawn the effectiveness of such Registration
Statement, either temporarily or permanently, or intends or has threatened to
do so (unless the SEC’s concerns have been addressed and Buyer is reasonably
satisfied that the SEC no longer is considering or intends to take such
action), and (ii) no other suspension of the use or withdrawal of the
effectiveness of such Registration Statement or related prospectus shall exist.


 


8.4  The trading of
the Seller Common Stock shall not have been suspended by the SEC, the Nasdaq
Global Select Market or the FINRA and the Seller Common Stock shall have 


 


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been approved for listing or quotation on and shall not have been
delisted from the Nasdaq Global Select Market.


 


9.  Conditions
Precedent to the Obligation of Seller to Issue and Sell the
Shares.  The obligation hereunder of
Seller to issue and sell the Shares to Buyer incident to Closing is subject to
the satisfaction, at or before Closing, of each of the conditions set forth
below.


 


9.1  Buyer shall have
performed, satisfied and complied in all respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by Buyer at or prior to Closing.


 


10.  Gross
Up Rights.


 


10.1  If at any time
after Closing and until the earlier of (a) the first date upon which Buyer
no longer beneficially owns Seller Common Stock representing at least 4.9% of
the issued and outstanding shares of Seller Common Stock immediately prior to
an issuance contemplated under this Section 10.1, or (b) the date of
any breach by Buyer of any obligation under this Agreement, Seller issues or
proposes to issue any Seller Common Stock or any or securities convertible
into shares of Seller Common Stock, Buyer shall have the
option and right to acquire such number of shares of Seller Common Stock so
that immediately after such issuance Buyer shall beneficially own the same
percentage of such Seller Common Stock on an as converted basis as was
beneficially owned by Buyer before such issuance.


 


10.2  Prior to
issuing any Seller Common Stock or any securities convertible into
shares of Seller Common Stock (other than issuances pursuant to Section 10.3),
Seller shall provide Buyer with ten business days’ prior written notice (or if
such notice period is not possible under the circumstances, such prior notice
as is practicable) of the proposed issuance. Buyer shall have the right,
exercisable by providing written notice to Seller of the exercise of its rights
within ten days after receipt of Seller’s notice, to purchase for cash directly
from Seller up to a sufficient number of such Seller Common Stock so that,
after giving effect to such issuance, Buyer will beneficially own the same
percentage of such Seller Common Stock on an as converted basis as was
beneficially owned by Buyer before such issuance.  The purchase price for any Seller Common
Stock purchased by Buyer pursuant to this Section 10.2 will be the price
at which Seller issues such Seller Common Stock or any securities
convertible into shares of Seller Common Stock to other shareholders or
third parties.  Seller shall provide such
information, to the extent reasonably available, relating to any non-cash
consideration as Buyer may reasonably request in order to evaluate any non-cash
consideration paid in respect of any issuance pursuant to this Section 10.2.  If, in connection with any issuance by Seller
covered by this Section 10.2, Buyer gives notice of its intent to exercise
its option under this Section 10.2 but has not purchased the securities
subject thereto within 60 days thereafter for reasons not primarily
related to actions or omissions of Seller or the absence of any approvals or
consents or the taking of any other actions required to be taken under
applicable law or the prohibition on purchasing such securities during such
period imposed by applicable securities laws, Buyer shall be deemed to have
waived its rights to purchase such securities under this Section 10 with
respect to such issuance of Seller Common Stock or securities convertible into
shares of Seller Common Stock.


 


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10.3 
The provisions in this Section 10 shall not apply to any issuance
of capital stock of Seller or other equity interests of Seller or securities
convertible into shares of capital stock or other equity interests in Seller or
any of its subsidiaries (A) to employees, officers or directors of Seller
or any of its subsidiaries pursuant to management or employee incentive
programs or plans approved by the Board of Directors (including any such
programs or plans in existence on the date hereof), (B) by Seller or any
of its subsidiaries to a third party as consideration in connection with (but
not in connection with raising capital to fund) (x) an acquisition or
strategic business combination approved by the Board of Directors, or (y) an
investment by Seller or its subsidiaries approved by the Board of Directors in
any party which is not prior to such transaction an affiliate of Seller
(whether by merger, consolidation, stock swap, sale of assets or securities, or
otherwise), (C) by Seller or its subsidiaries in any registered public
offering, (D) upon the exercise, conversion or exchange of options,
warrants or other convertible securities, and (E) in connection with any
stock split, stock dividend paid on a proportionate basis to all holders of the
affected class of capital stock or recapitalization approved by the Board of
Directors.


 


11.  Miscellaneous.


 


11.1 
This Agreement sets forth the entire understanding of the parties with
respect to its subject matter, it supersedes all prior agreements between the
parties, and it may not be altered except by written agreement by all parties
hereto.  This Agreement shall be binding
upon and inure to the benefit of the parties, their heirs, legal
representatives, successors and assigns. 
This Agreement is not transferable or assignable by the parties.


 


11.2 
The representations, warranties, covenants and agreements of Seller and
Buyer contained herein or made pursuant to this Agreement which by their terms
are intended to survive the consummation of the transactions contemplated by
this Agreement shall survive the execution and delivery of this Agreement.


 


11.3 
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to its conflicts of
law principles.  Any legal proceedings
with respect to this Agreement shall take place solely within the courts
located within the Commonwealth of Pennsylvania and all parties hereto consent
to the jurisdiction of said courts.  The
parties hereby waive any right to trial by jury in any action or proceedings
arising out of or related to this Agreement.


 


11.4 
Seller will provide to the Buyer an advance copy of any proposed
announcement to be made by Seller with respect to this Agreement and/or the
transaction contemplated hereby and Buyer shall have the right to approve any
information contained therein regarding Buyer, its affiliates and the
transactions contemplated hereby, which approval shall not be unreasonably
withheld or delayed.


 


11.5 
This Agreement may be executed in any number of counterparts, and each
such counterpart will for all purposes be deemed an original, and all such
counterparts shall constitute one and the same instrument.


 


11.6 
The section and subsection headings contained in this Agreement are
included for convenience only and form no part of the agreement between the
parties.


 


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11.7 
If for any reason any provision herein is determined to be invalid, such
invalidity shall not impair or otherwise affect the validity of the other
provisions of this Agreement.  Moreover,
the parties agree to replace such invalid provision with a substitute provision
that will satisfy the intent of the parties.


 


11.8 
Paragraph titles herein are for description purposes only and shall not
control or alter the meaning of the provisions of this Agreement as set forth
in the text.


 


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IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the
day and year first above written.


 


	
  ATTEST:

  	
  VIST FINANCIAL CORP., Seller

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert D. Davis

  
	
  (corporate
  seal)

  	
   

  	
  Robert
  D. Davis

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
  EMERALD
  ADVISERS, INC., Buyer

  
	
   

  	
   

  	
   

  
	
   (corporate
  seal)

  	
  By:

  	
  /s/
  Kenneth G. Mertz II

  
	
   

  	
   

  	
  Kenneth
  G. Mertz II

  
	
   

  	
   

  	
  President
  and Chief Investment Officer

  



 


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