UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
CURRENT
REPORT PURSUANT TO
SECTION
13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of
report (Date of earliest event reported) December
28, 2005
FIRST
MARINER BANCORP
(Exact
name of Registrant as specified in Charter)
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Maryland
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000-21815
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52-1834860
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(State
or other
Jurisdiction
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(Commission
File
Number)
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(IRS
Employer
Identification
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of
incorporation)
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No.)
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3301
Boston Street, Baltimore, MD 21224
(Address
of Principal Executive Offices/Zip Code)
Registrant's
telephone number, including area code: (410)
342-2600
Not
Applicable
(Former
name or former address of Registrant, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligations of the registrant under any of the following
provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement
communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
INFORMATION
TO BE INCLUDED IN THE REPORT
Item
1.01. Entry
into a Material Definitive Agreement.
See
the
information reported in Item 2.03 of this Current Report on Form 8-K, which
is
incorporated herein by reference.
Item
2.03. Creation
of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet
Arrangement of a Registrant.
Introduction
On
December 28, 2005 First Mariner Bancorp (the “Company”) entered into several
agreements providing for the private placement of Preferred Securities
(“Preferred “Securities”) by its newly formed Delaware trust subsidiary, Mariner
Capital Trust VIII (the “Trust”), to Wilmington Trust Company (the “Purchaser”).
The agreements provide for the Trust to sell $10,000,000 of Preferred Securities
to the Purchaser and $310,000 of Common Securities (the “Common Securities” and
collectively with the Preferred Securities, the “Securities”) to the Company,
which sales were completed on December 28, 2005. The Trust used the proceeds
from the sales of the Securities to purchase the Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2035 described below (the
“Debentures”) from the Company on December 28, 2005.
The
Preferred Securities have not been registered under the Securities Act of
1933,
as amended (the "Securities Act"), and may not be offered or sold in the
United
States absent registration or an exemption from the registration requirements.
This notice does not constitute an offer to sell or the solicitation of an
offer
to buy the Preferred Securities.
The
principal agreements into which the Company has entered in connection with
these
transactions are briefly described below.
Placement
Agreement
On
December 28, 2005 the Company and the Trust entered into a Placement Agreement
(the “Placement Agreement”) with J.P. Morgan Securities Inc. (the “Placement
Agent”), who agreed to arrange for the purchase of the Preferred Securities by
the Purchaser. The Placement Agreement provides for the sale by the Trust
of the
Preferred Securities to the Purchaser for a purchase price of $10,000,000.
The
Placement Agreement provides that the Company will pay all costs and expenses
incident to the performance of the obligations of the Company and the Trust
under the Placement Agreement. The Placement Agreement requires the Company
and
the Trust to indemnify the Placement Agent, the Purchaser, the Placement
Agent's
affiliates, certain subsequent purchasers of the Preferred Securities identified
in the Placement Agreement, and the directors, officers, employees, and agents
of the foregoing and each person who "controls" such persons (within the
meaning
of either the Securities Act or the Securities Exchange Act of 1934, as amended)
against certain losses, claims, damages, and liabilities arising in connection
with the sale of the Preferred Securities.
Indenture
On
December 28, 2005, the Company entered into an Indenture (the “Indenture”) with
Wilmington Trust Company, as Trustee. The Indenture provides for the issuance
by
the Company of Debentures aggregating $10,310,000 in principal amount, which
Debentures were issued on December 28, 2005 and registered in the name of
the
Wilmington Trust Company, the Institutional Trustee on behalf of the Trust.
The
Debentures bear
interest at a rate per annum of 6.26% through December 30, 2010 and thereafter
at a rate per annum, reset quarterly, equal to the 3-Month LIBOR plus 1.50%.
Interest
is payable on each March 30, June 30, September 30, and December 30.
Under
the
Indenture, the Company has the option, so long as it is not in default under
certain specified provisions of the Indenture, at any time and from time
to
time, to defer the payment of interest on the Debentures for up to 20
consecutive quarterly interest payment periods. During any such extension
period, or while an event of default exists under the Indenture, or if the
Company is in default with respect to its payment obligations under the
Guarantee Agreement discussed below, the Indenture imposes restrictions on
the
Company’s ability to (i) declare or pay dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of
the Company’s capital stock, or (ii) make payments of principal, interest or
premium on, or repay, repurchase or redeem, any debt securities the Company
may
issue that rank equal or junior to the Debentures.
The
Debentures mature on December 30, 2035 and can be redeemed in whole or in
part
by the Company, at its option, at 100% of their principal amount plus accrued
and unpaid interest at any time on or after December 30, 2010. During the
occurrence and continuance of a Special Event as defined in the Indenture,
the
Company may also redeem the Debentures in full, at its option, at 100% of
their
principal amount plus accrued and unpaid interest.
The
Trustee or the holders of at least 25% in aggregate principal amount of
outstanding Debentures may, by notice to the Company (and in some cases also
to
the Trustee), declare the principal amount of all of the Debentures due and
payable immediately upon the occurrence of certain events of default specified
in the Indenture.
The
Indenture requires the Company to indemnify and hold harmless the Trustee,
its
Affiliates (as defined in the Indenture), and their officers, agents, directors,
shareholders, representatives, and employees against all losses, damages,
and
other liabilities arising out of or in connection with the acceptance or
administration of the Trust, to the extent such losses, damages or liabilities
are incurred without negligence, bad faith or willful misconduct on the part
of
the indemnified person.
Amended
and Restated Declaration of Trust
On
December 28, 2005, the Company, as Depositor, Wilmington Trust Company, as
Property Trustee, Wilmington Trust Company, as Delaware Trustee, and Mark
A.
Keidel and Eugene A. Friedman, as Administrators, entered into an Amended
and
Restated Declaration of Trust (the “Trust Agreement”). Each of the
Administrators is an officer of the Company.
The
Trust
Agreement provides for the issuance of the Securities by the Trust. Each
Security has a liquidation amount of $1,000. The Preferred Securities have
an
aggregate liquidation amount of $10,000,000 and the Common Securities have
an
aggregate liquidation amount of $310,000. The Trust Agreement provides for
distributions to be paid on the Securities, based on the liquidation amount
of
the outstanding Securities, at the same rates and times as interest is payable
on the Debentures issued pursuant to the Indenture by the Company to the
Institutional Trustee.
Guarantee
Agreement
On
December 28, 2005, the Company, as Guarantor, entered into a Guarantee Agreement
with Wilmington Trust Company, as Guarantee Trustee, for the benefit of the
holders from time to time of the Preferred Securities. Pursuant to the Guarantee
Agreement, the Company unconditionally agreed to pay (to the extent not paid
by
or on behalf of the Trust, and without duplication), amounts due and payable
under the Preferred Securities, to the extent that the Trust has funds available
for such payment at the time, as well as all other costs, expenses and
liabilities (other than tax liabilities) of the Trust. The Company’s obligations
under the Guarantee Agreement are subordinate and junior in right of payment
to
all of the Company’s Senior Indebtedness as defined in the
Indenture.
Item
5.02 Departure
of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers.
Effective
December 29, 2005 Stephen Burch resigned from the Board of Directors of the
Company. Mr. Burch's employment commitments require him to relocate to the
United Kingdom and he believes that his distance from the Company and his
employment commitments upon relocation will limit the usefulness of his further
service to the Board.
Item
9.01. Financial
Statements and Exhibits.
(c)
Exhibits.
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4
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Indenture
dated as of December 28, 2005.
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Pursuant
to Regulation S-K Item 601(b)(4)(iii), the registrant agrees to
furnish a
copy of the Indenture to the Securities and Exchange Commission
upon
request. |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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FIRST
MARINER BANCORP |
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| Date:
December 30, 2005 |
By: |
/s/ Joseph
A. Cicero |
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Joseph
A. Cicero |
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President
and Chief Operating Officer |
EXHIBIT
INDEX
Exhibit
Description
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4
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Indenture
dated as of December 28, 2005.
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Pursuant
to Regulation S-K Item 601(b)(4)(iii), the registrant agrees
to furnish a
copy of the Indenture to the Securities and Exchange Commission
upon
request. |