Filing Details

 

 

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CUSIP No. 984102103
1.	Names of Reporting Persons.   Robert B. Goldstein
2.	Check the Appropriate Box if a Member of a Group (See Instructions)   (a)  £        (b)  x
3.	SEC Use Only
4.	Source of Funds (See Instructions)   OO
5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   £
6.	Citizenship or Place of Organization   United States
Number of Shares Beneficially Owned by Each Reporting Person With		7.	Sole Voting Power   1,254 (1)
		8.	Shared Voting Power   5,107,514 (1)
		9.	Sole Dispositive Power   1,254 (1)
		10.	Shared Dispositive Power   5,107,514 (1)
11.	Aggregate Amount Beneficially Owned by Each Reporting Person   5,108,768 (1)
12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   £
13.	Percent of Class Represented by Amount in Row (11)   22.1% (2)
14.	Type of Reporting Person (See Instructions)   IN

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(1)	The share amounts reflect a 1-for-10 reverse stock split effected by the Issuer on December 13, 2016.
(2)	The calculation of the percentage of outstanding shares is based on 23,160,147 shares of Common Stock outstanding as of May 18, 2017, as set forth in the Reorganization Agreement by and between the Issuer and Union Bankshares Corporation, dated as of May 19, 2017.

 

Item 4.

Purpose of Transaction

 

*	The share amounts reflect a 1-for-10 reverse stock split effected by the Issuer on December 13, 2016.
(1)	The calculation of the percentage of outstanding shares is based on 23,160,147 shares of Common Stock outstanding as of May 18, 2017, as set forth in the Reorganization Agreement.

Item 6 of the 13D Filing is hereby amended and supplemented by inserting the below paragraphs immediately prior to the last paragraph thereof:

 

Pursuant to the Voting Agreement, CapGen LP has agreed, among other things, that it will not vote any of its Common Stock in favor of, or consent to, and will vote such Common Stock against and not consent to, the approval of any (i) Acquisition Proposal (as that term is used in the Reorganization Agreement), (ii) corporate action the consummation of which would reasonably be expected to frustrate the purposes, or prevent or materially delay the consummation of, the transactions contemplated by the Reorganization Agreement, (iii) any corporate action the consummation of which would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of Issuer under the Reorganization Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters. In connection with the foregoing, CapGen LP granted a revocable proxy appointing Union as attorney-in-fact and proxy, with full power of substitution, for and in its name, to vote, express consent or dissent, or otherwise to utilize such voting power in the manner contemplated by the Voting Agreement as Union or its proxy or substitute shall, in Union’s sole discretion, deem proper with respect to CapGen LP’s shares.

In addition, CapGen LP will not, without the prior written consent of Union, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any of CapGen LP’s Common Stock relating to the matters set forth in the Voting Agreement

 

 

(ii) revoke the proxy granted pursuant to the Voting Agreement except upon termination of the Voting Agreement or (iii) Transfer (as that term is used in the Voting Agreement), encumber or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect Transfer, encumbrance or other disposition of, any Common Stock, prior to the termination of Voting Agreement.

Furthermore, CapGen LP has agreed, in its capacity as a shareholder of the Issuer, and not in its capacity as a director, officer, or employee of the Issuer, as applicable, that it will not, and will cause its officers and directors, and will instruct and use reasonable best efforts to cause its representatives and partners not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to an Acquisition Proposal (as that term is used in the Reorganization Agreement), (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal (as the term is used in the Reorganization Agreement), (iii) provide any confidential or nonpublic information or data to, have or participate in any discussions with or otherwise cooperate in any way with, any person in connection with any Acquisition Proposal (as the term is used in the Reorganization Agreement) or (iv) enter into any term sheet, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to and entered into in accordance with the terms of the Reorganization Agreement) relating to any Acquisition Proposal (as the term is used in the Reorganization Agreement), in each case, except to the extent that the Issuer is permitted to take such action pursuant to the Reorganization Agreement. CapGen LP will and will cause its officers, directors, and will use reasonable best efforts to cause its representatives and partners to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of the Voting Agreement with any person other than Union with respect to any Acquisition Proposal (as the term is used in the Reorganization Agreement) of the Issuer. CapGen LP will promptly (within twenty-four (24) hours) advise Union following CapGen LP’s receipt of any Acquisition Proposal (as the term is used in the Reorganization Agreement) or any inquiry which could reasonably be expected to lead to an Acquisition Proposal (as the term is used in the Reorganization Agreement), and the substance thereof (including the material terms and conditions of the Acquisition Proposal), and will keep Union apprised of any related material developments, discussions and negotiations on a reasonably current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal (as the term is used in the Reorganization Agreement), in each case to the extent Issuer has not previously notified Union.

In addition, Union will, and CapGen LP may, at its option, enter into by no later than thirty (30) days following the Effective Time (as that term is used in the Voting Agreement), a registration rights agreement (the “Registration Rights Agreement”) among Union, CapGen and certain other shareholders of Union who have entered into a voting agreement with Union (collectively, the “Institutional Shareholders”). The Registration Rights Agreement will apply to up to all shares of Union common stock which the Institutional Shareholders, as of the Effective Time (as that term is used in the Voting Agreement), own or have the right to receive pursuant to the terms of the Reorganization Agreement (the “Registrable Securities”). The Registration Rights Agreement will contain customary terms and conditions, including, but not limited to the following: (i) an obligation of Union, upon the request of any of the Institutional Shareholders, at any time on and after the twentieth (20^th) business day prior to the expiration of the Lock-Up Period, to prepare and file a shelf registration statement with respect to the Registrable Securities (the “Registration Statement”), and to use its commercially reasonable efforts to keep the Registration Statement continuously effective for twelve (12) months following the effective date of the Registration Statement (such period, the “Registration Period”); (ii) demand rights for underwritten offerings of Registrable Securities under the Registration Statement, which rights may be exercised one (1) time by each Institutional Shareholder during the Registration Period upon the request of such Institutional Shareholder; (iii) lockup provisions; (iv) Union-initiated blackout periods; and (v) indemnification; provided that the foregoing provisions will not prohibit or restrict CapGen LP from making a distribution of Registrable Securities at any time following the Lock-Up Period to any of its limited partners or other investors for no consideration. The Registration Rights Agreement will also

The foregoing references to and descriptions of the Voting Agreement and Affiliate Agreement do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the full text of the Voting Agreement and the Affiliate Agreement, which are incorporated by reference to this Item 6.

Item 7 of the 13D Filing is hereby amended and supplemented by inserting the following:

 

 

 

 

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