tibb8k120508ex10_1.htm


    
      

      

    



    Exhibit
10.1

    


    Letter
Agreement

    UNITED STATES DEPARTMENT OF THE TREASURY

    1500
PENNSYLVANIA AVENUE, NW

    WASHINGTON,
D.C. 20220

     

    
      	
               
      

            	
              UST
      Sequence Number:  152

            


    

    


    Dear
Ladies and Gentlemen:

     

    The
company set forth on the signature page hereto (the “Company”) intends to issue in
a private placement the number of shares of a series of its preferred stock set
forth on Schedule A hereto (the “Preferred Shares”) and a
warrant to purchase the number of shares of its common stock set forth on
Schedule A hereto (the “Warrant” and, together with
the Preferred Shares, the “Purchased Securities”) and
the United States Department of the Treasury (the “Investor”) intends to
purchase from the Company the Purchased Securities.

     

    The
purpose of this letter agreement is to confirm the terms and conditions of the
purchase by the Investor of the Purchased Securities.  Except to the
extent supplemented or superseded by the terms set forth herein or in the
Schedules hereto, the provisions contained in the Securities Purchase Agreement
– Standard Terms attached hereto as Exhibit A (the “Securities Purchase
Agreement”) are incorporated by reference herein.  Terms that
are defined in the Securities Purchase Agreement are used in this letter
agreement as so defined.  In the event of any inconsistency between
this letter agreement and the Securities Purchase Agreement, the terms of this
letter agreement shall govern.

     

    Each of
the Company and the Investor hereby confirms its agreement with the other party
with respect to the issuance by the Company of the Purchased Securities and the
purchase by the Investor of the Purchased Securities pursuant to this letter
agreement and the Securities Purchase Agreement on the terms specified on
Schedule A hereto.

     

    This
letter agreement (including the Schedules hereto) and the Securities Purchase
Agreement (including the Annexes thereto) and the Warrant constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties, with
respect to the subject matter hereof.  This letter agreement
constitutes the “Letter Agreement” referred to in the Securities Purchase
Agreement.

     

    This
letter agreement may be executed in any number of separate counterparts, each
such counterpart being deemed to be an original instrument, and all such
counterparts will together constitute the same agreement.  Executed
signature pages to this letter agreement may be delivered by facsimile and such
facsimiles will be deemed as sufficient as if actual signature pages had been
delivered.

     

    * *
*

    In
witness whereof, this letter agreement has been duly executed and delivered by
the duly authorized representatives of the parties hereto as of the date written
below.

     

                                    


    
      
        	 
      	UNITED
      STATES DEPARTMENT OF THE SECRETARY
      
                 

              	 
      
	
                 

              	
                By:

              	
                  /s/  Neel Kashkari

              	 
      
	 
      	
                Name:

              	
                Neel
      Kashkari

              	 
      
	 
      	
                Title:

              	
                Interim
      Assistant Secretary for Financial Stability

              	 
      
	 
      	 
      	 
      	 
      


      



      	
            	TIB
      FINANCIAL CORP. 
      
               

            	 
      
	
               

            	
              By:

            	
                /s/  Thomas
      J. Longe

            	 
      
	 
      	
              Name:

            	
              Thomas
      J. Longe

            	 
      
	 
      	
              Title:

            	
                    
                Chairman
      and Chief Executive Officer

              

            	 
      
	 
      	 
      	 
      




     

    


    


    


    Date:
December 5,
2008

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

    


    SECURITIES PURCHASE
AGREEMENT

    


    


    Exhibit
10.4 incorporated by reference


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SCHEDULE
A

    


    ADDITIONAL TERMS AND
CONDITIONS

    


    
      	
               
      

            	
              UST
      Sequence Number:  152

            


    

    


    
      	
               
      

            	
              Company
      Information:

            


    

    


    Name of
the Company:  TIB Financial Corp.

    Corporate
or other organizational form:  Corporate

    Jurisdiction
of Organization:  Florida

    Appropriate
Federal Banking Agency:  Federal Reserve Bank of Atlanta

    Notice
Information:                                       Stephen
J.
Gilhooly                                                                           John
P. “Jack” Greeley, Esquire

    EVP & Chief Financial
Officer                                                                                     Smith
Mackinnon, P.A.

    TIB Financial
Corp.                                                                           255
S. Orange Ave.

    599 Ninth Street N., Suite
101                                                                                     Suite
800

    Naples,
Florida 34102                                                                                     Orlando,
Florida 32801

    Telephone:  (239)
659-5876                                                                           Telephone:  (407)
843-7300

    Facsimile:  (239)
263-4543                                                                           Facsimile:  (407)
843-2448

    


    Terms of
Purchase:

    
      	
               
      

            	
              Series
      of Preferred Stock Purchased:

            	
                Fixed
      Rate Cumulative Perpetual Preferred Stock, Series
  A

            


    

     

    Per Share
Liquidation Preference of Preferred
Stock:                                                                                                       One
thousand dollars ($1,000.00)

    Number of
Shares of Preferred Stock Purchased:  37,000

    
      	
               
      

            	
              Dividend
      Payment Dates on the Preferred Stock:  February 15, May 15,
      August 15, and November 15

            


    

     

    Number of
Initial Warrant Shares:  1,063,218

    Exercise
Price of the Warrant:  $5.22 per share

    Purchase
Price:  $37,000,000.00

    Closing:

    Location
of Closing:

    Time of
Closing:

    Date of
Closing:

    Wire
Information for
Closing:                                                                                ABA
Number:

    Bank:  TIB
Bank

    Account Name:  TIB
Financial Corp.

    Account Number:

    Beneficiary:  TIB
Financial Corp.

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SCHEDULE
B

     

    CAPITALIZATION

     

    
      	
               
      

            	
              UST
      Sequence Number:  152

            


    

    


    


    Capitalization
Date:  November 30, 2008

     

    Common
Stock

     

    
      	
              Par
      value:

            	
              $0.10
      per share

            


    

     

    
      	
              Total
      Authorized:

            	
              40,000,000
      shares

            


    

     

    
      	
               
      

            	
              Outstanding:  14,314,756
      shares

            


    

     

    
      	
               
      

            	
              Subject
      to warrants, options, convertible

            


    

    securities,
etc.:                                  1,897,160
shares

    


    
      	
               
      

            	
              Reserved
      for benefit plans and other

            


    

    
      	
               
      

            	
              issuances:  307,371
      shares

            


    

    


    
      	
               
      

            	
              Remaining
      authorized but unissued:  23,410,123 shares * Remaining shares
      have been reduced by 70,590 shares that are held in treasury shares and
      are considered issued but not
outstanding.

            


    

    


    
      	
               
      

            	
              Shares
      issued after Capitalization Date

            


    

    (other
than pursuant to warrants, options,

    convertible
securities, etc. as set forth

    above):                        None

    


     

    Preferred
Stock

     

    Par
value:  No par value

     

    Total
Authorized:  5,000,000 shares

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Outstanding
(by series):  None

     

    Reserved
for issuance:  None

     

    Remaining
authorized but unissued:  5,000,000 shares


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    SCHEDULE
C

    UST Seq.
Number 152

    


    


    REQUIRED STOCKHOLDER
APPROVALS

    


    


     Required1                                      % Vote
Required

    


    


    Warrants -- Common Stock
Issuance

    


    Charter
Amendment

    


    


    Stock
Exchange Rules

    


    


    


    [Missing Graphic Reference]

    If no stockholder approvals are
required, please so indicate by checking the box:    
X

    


    


    


    


    


    


    If
stockholder approval is required, indicate applicable class/series of capital
stock that    are required to vote.

    


     

    


     

    SCHEDULE
D

    UST Seq.
Number 152

    


    


    


    LITIGATION

    


    List any
exceptions to the representation and warranty in Section 2.2(l) of the
Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    [Missing Graphic Reference]

    If none, please so indicate by checking
the box:  X .

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    SCHEDULE
E

    UST Seq.
Number 152

    


    


    COMPLIANCE WITH
LAWS

    


    List any
exceptions to the representation and warranty in the second sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    [Missing Graphic Reference]

    If none, please so indicate by checking
the box: X

    


    


    List any
exceptions to the representation and warranty in the last sentence of Section
2.2(m) of the Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    [Missing Graphic Reference]

    If none, please so indicate by checking
the box: .X

    


    


     

    


     

    


    


    


    


    


    


    


    


    


    


    


    SCHEDULE
F

    UST Seq.
Number 152

    


    REGULATORY AGREEMENTS

    


    


    List any
exceptions to the representation and warranty in Section 2.2(s) of the
Securities Purchase Agreement – Standard Terms.

    


    


    


    


    


    


    


    


    [Missing Graphic Reference]

    If none,
please so indicate by checking the box: .X