Unassociated Document


     

    Exhibit
4.4

       

      NEW
CENTURY BANK

      


      ANTI-DILUTION
AGREEMENT

      


      THIS
ANTI-DILUTION AGREEMENT (this “Agreement”) is entered into as of ______, 20__ by
NEW CENTURY BANK ("Bank”) in favor of ______________________________ (the
"Purchaser").

      


      RECITALS

      


      A.
Concurrently with the execution of this Agreement, pursuant to a certain
contemporaneous Confidential Subscription Agreement (as it may have been
amended, the “Subscription Agreement”) the Purchaser is purchasing from the Bank
shares (the “Purchased Shares”) of the Bank's voting common stock, par value
$1.00 per share (the “Voting Common Stock”) and/or Class B Non-Voting Common
Stock (the “Class B Non-Voting Common Stock”) at a price of $____ per Purchased
Share (the “Purchase Price”).

      


      B. By
this Agreement, the Bank desires to set forth the Bank’s agreements regarding a
possible adjustment in the number of Purchased Shares as a result of a Diluting
Issuance (as defined below).

      


      NOW,
THEREFORE, in consideration of closing on the Subscription Agreement and the
parties’ agreement to complete performance under it, and the mutual promises,
covenants and conditions hereinafter set forth, and intending to be legally
bound hereby, the Bank hereby agrees as follows:

      


      SECTION
1. DEFINITIONS.

      


      As used
in this Agreement, the following terms have the following respective
meanings:

      


      (a)
"Additional Common Shares" means all Common Stock (including reissued shares)
Issued (or deemed to be issued pursuant to Section 2) after the date of this
Agreement. Additional Common Shares does not include, however, any Common Stock
Issued upon conversion of preferred stock outstanding on the date of this
Agreement; the Shares; or Common Stock Issued as incentive or in a nonfinancing
transaction to employees, officers, directors or consultants to the
Bank.

      


      (b)
“Common Stock” means Voting Common Stock and Class B Non-Voting Common
Stock.

      


      (c)
"Convertible Securities" means any evidences of indebtedness, shares of stock or
other securities directly or indirectly convertible into or exchangeable for
Common Stock or Class B Non-Voting Common Stock.

      


      (d)
"Issue" means to grant, issue, sell, assume or fix a record date for determining
persons entitled to receive any security (including Options) whichever of the
foregoing is the first to occur.


      
        
           


        

        
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      (e)
"Option" means any right, option or warrant to subscribe for, purchase or
otherwise acquire Common Stock or Convertible Securities.

      


      SECTION
2. DEEMED ISSUANCE OF ADDITIONAL COMMON SHARES.

      


      The
shares of Common Stock ultimately Issuable upon exercise of an Option (including
the shares of Common Stock ultimately Issuable upon conversion or exercise of a
Convertible Security Issuable pursuant to an Option) are deemed to be Issued
when the Option is Issued. The shares of Common Stock ultimately Issuable upon
conversion or exercise of a Convertible Security (other than a Convertible
Security Issued pursuant to an Option) shall be deemed Issued upon Issuance of
the Convertible Security.

      


      SECTION
3. ADJUSTMENT OF NUMBER PURCHASED SHARES FOR DILUTING ISSUANCES.

      


      3.1 Weighted Average
Adjustment. If, at any time on or before June 30, 2010, the Bank Issues
(or pursuant to Section 2 is deemed to issue) Additional Common Shares after the
date of this Agreement and the consideration per Additional Common Share
(determined pursuant to Section 5) (the “New Issue Price”) is less than the
Purchase Price (as it may have been deemed adjusted pursuant to this Agreement)
(a "Diluting Issuance"), other than with respect to shares issued to (a) the
Bank's employees, officer or directors in connection with their employment or
retention of services not to exceed the number of Shares reserved in the Bank's
existing equity financing plans, or (b) customers or vendors in connection with
bona fide business transactions, the Bank shall, concurrently with such Issue,
issue to Purchaser, at no additional cost or price to Purchaser, an additional
number of shares of Common Stock determined by multiplying the number of
Purchased Shares by a fraction:

      


      (I) the
numerator of which is the Purchase Price immediately before such Issue,
and

      


      (II) the
denominator of which is the New Issue Price.

      


      The
additional shares of Common Stock to be issued to Purchaser at any time under
this Agreement shall be allocated as between Voting Common Stock and Class B
Non-Voting Common Stock on whichever of the following bases is
applicable:

      


      
        	
                 
      

              	
                (i)

              	
                If
      Purchaser did not elect in the Subscription Agreement to be subject to
      potential restrictions on transfer pursuant to Article VII of the
      Subscription Agreement, that number of shares of Common Stock to be issued
      to Purchaser at any time under this Agreement shall include Voting Common
      Stock to the extent, but only to the extent, that the total number of
      shares of Voting Common Stock owned and deemed owned by Purchaser (taking
      into account all shares of Voting Common Stock owned by Purchaser and all
      shares of Voting Common Stock for which any warrants or options held by
      the Purchaser after such issuance are exercisable) do not exceed 4.9% of
      all shares of Voting Common Stock of the Bank then issued and
      outstanding.

              


      


      
        
           


        

        
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                (ii)

              	
                If
      Purchaser elected to be subject to the potential restrictions on transfer
      pursuant to Article VII of the Subscription Agreement, that number of
      shares of Common Stock to be issued to Purchaser at any time under this
      Agreement shall include Voting Common Stock to the extent, but only to the
      extent, that the total number of shares of Voting Common Stock owned and
      deemed owned by Purchaser (taking into account all shares of Voting Common
      Stock owned by Purchaser and all shares of Voting Common Stock for which
      any warrants or options held by the Purchaser after such issuance are
      exercisable) do not exceed 9.9% of all shares of Voting Common Stock of
      the Bank then issued and outstanding.   If, at the time of
      issuance, Purchaser shall have obtained any prior regulatory approvals for
      Purchaser to own or be deemed to own 10% or more of the outstanding shares
      of Voting Common Stock of the Bank, the Bank will issue to the Purchaser
      such number of shares of Voting Common Stock as shall not exceed the
      maximum number of shares of Voting Common Stock that the Purchaser is
      authorized to own pursuant to applicable federal and state change in bank
      control laws and regulations, taking into account any such
      approvals.

              


      

      


      If, as
the result of the application of paragraph (i) or paragraph (ii) of this Section
at any time of reference, shares of Voting Common Stock must comprise less than
all of the shares of Common Stock to be issued to the Purchaser by the Bank, the
balance of any shares of Common Stock to be issued by the Bank shall be issued
in the form of Class B Non-Voting Common Stock.

      


      3.2 Adjustment of Number of
Purchased Shares and Purchase Price for Subsequent Issues. Upon each
issuance of additional shares of Common Stock to Purchaser under this
Agreement:  (i) the number of “Purchased Shares” for purposes of this
Agreement shall be deemed to be increased by the number of additional shares of
Common Stock then being issued to Purchaser, and (ii) the “Purchase Price” shall
be deemed reduced to the New Issue Price for the share issuance causing the
adjustment.  The number of Purchased Shares and the Purchase Price,
determined as adjusted pursuant to this paragraph, shall thereafter be deemed
the number of Purchased Shares and the Purchase Price for purposes of applying
the provisions of this Agreement upon a subsequent issuance by the Bank of
Additional Common Shares.

      


      SECTION
4. NO ADJUSTMENT FOR ISSUANCES FOLLOWING DEEMED ISSUANCES.

      


      No
adjustment to the number of Purchased Shares or the Purchase Price shall be made
upon the exercise of Options or conversion of Convertible
Securities.

      


      SECTION
5. COMPUTATION OF CONSIDERATION.

      


      The
consideration received by the Bank for the Issue of any Additional Common Shares
shall be computed as follows:

      


      (a) Cash
shall be valued at the amount of cash received by the Bank, excluding amounts
paid or payable for accrued interest or accrued dividends.

      


      (b)
Property, other than cash, shall be computed at the fair market value thereof at
the time of the Issue as determined in good faith by the Board of Directors of
the Bank.


      
        
           


        

        
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      (c) The
consideration for Additional Common Shares Issued together with other property
of the Bank for consideration that covers both shall be determined in good faith
by the Board of Directors.

      


      (d) The
consideration per Additional Common Share for Options and Convertible Securities
shall be determined by dividing:

      


      (i) the
total amount, if any, received or receivable by the Bank for the Issue of the
Options or Convertible Securities, plus the minimum amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Bank upon exercise of the Options or conversion of
the Convertible Securities, by

      


      (ii) the
maximum number of shares of Common Stock (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such number) ultimately Issuable upon the exercise of
such Options or the conversion of such Convertible Securities.

      


      SECTION
6. GENERAL.

      


      6.1 Governing Law. This
Agreement shall be governed in all respects by the internal laws of the
Commonwealth of Pennsylvania, without regard to rules of conflict of laws or
choice of law, and by federal law to the extent it pre-empts state
law.

      


      6.2 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the Bank, the Purchaser and their respective successors, heirs, personal
representatives and permitted assigns, but Purchaser agrees that Purchaser shall
not be authorized to assign Purchaser’s rights or delegate Purchaser’s
obligations under this Agreement to anyone.

      


      6.3 Entire Agreement.
Except as set forth below, this Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.

      


      6.4 Notices, etc. All
notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by first class mail, postage prepaid, certified or
registered mail, return receipt requested, addressed (a) if to Purchaser at
Purchaser's address as set forth in  the  Subscription
Agreement, or at such other address at Purchaser shall have furnished to the
Bank in writing, or (b) if to the Bank, at the Bank's address set forth in the
Subscription Agreement, or at such other address as the Bank shall have
furnished to the Purchaser in writing.

      


      6.5 Severability. In case
any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.


      
        
           


        

        
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      6.6 Titles and Subtitles.
The titles of the sections and subsections of this Agreement are for convenience
of reference only and are not to be considered in construing this
Agreement.  All words, including defined terms, used in this Agreement
will be construed to be of such gender, number, tense or other derivation of the
word as the circumstances require.


      


      6.7 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.

      


      SECTION
7. EFFECTIVENESS.

      


      This
Agreement shall be deemed to take effect upon, completion of closing and
disbursement of Purchaser's subscription proceeds to Bank, on the Purchaser's
purchase of the Purchased Shares pursuant to the Subscription
Agreement.

      


      IN
WITNESS WHEREOF, the Bank has caused the due execution of this Agreement as of
the date first set forth above.

      


      
        	
                Attest:

                 

                 

                _________________________________

                Name:

                Title:

              	
                NEW
      CENTURY BANK

                 

                 

                By:
      ________________________________

                Name:

                Title:

              


      

      


      


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