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Hexagon Securities LLC v. Golden Pacific Bancorp, Inc.

United States District Court, N.D. California, San Francisco Division

January 13, 2015

HEXAGON SECURITIES LLC, Plaintiff,
v.
GOLDEN PACIFIC BANCORP, INC., Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Re: ECF No. 14

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Plaintiff Hexagon Securities, LLC ("Hexagon") entered into a contract with Defendant Golden Pacific Bancorp, Inc. ("GPB"), which Hexagon now says GPB breached by not paying it a transaction fee with respect to a transaction that closed after the contract terminated. Hexagon sued GPB, and now GPB moves to dismiss Hexagon's First Amended Complaint. Pursuant to Civil Local Rule 7-1(b), the court found this matter suitable for determination without oral argument and vacated the January 15, 2015 hearing. Upon consideration of Hexagon's allegations, the briefs submitted, and the applicable legal authority, the court grants GPB's motion and dismisses without prejudice Hexagon's First Amended Complaint.

STATEMENT

Hexagon is a small investment bank that specializes in capital markets, capital raising, and mergers and acquisition activities. First Amended Complaint ("FAC"), ECF No. 11 at 1.[1] GPB is a bank holding company. Id. On December 20, 2010, Hexagon and GPB entered into a written agreement (the "Agreement") regarding Hexagon's provision of financial services to GPB. Id .; see id., Ex. A, ECF No. 11-1 at 1-11. By written letter, the parties amended certain provisions of the Agreement on March 23, 2011. Id., Ex. A, ECF No. 11-1 at 12-13. The Agreement, as amended, provides in relevant part:

1. Services.
[GPB] hereby retains Hexagon and Hexagon shall have the right to act during the term of this Agreement as lead manager, bookrunner, placement agent, arranger or initial purchaser, as the case may be ("Lead Placement Agent"), in connection with the structuring, issuance, sale, arrangement or placement, whether in a public or private transaction, of any equity or hybrid securities, including (without limitation), stock, warrants and convertible debt securities (the "Securities") to investors ("Investors") (any of all of the foregoing, whether in one or more issuances, the "Transaction").
...
Hexagon's services as Lead Placement Agent shall include, but not be limited to, the following:
(a) Assisting with the preparation of any and all marketing materials for discussions with Investors relating to the Transaction, including working with [GPB] on the Information Memorandum;
(b) Assisting with the coordination of the marketing process and roadshow with respect to the Transaction;
(c) Assisting with the coordination of the execution of the Transaction with [GPB's] and Hexagon's legal counsel.
...
4. Compensation.
(a) [GPB] agrees to pay Hexagon, promptly upon closing of a Transaction, a cash fee (the "Transaction Fee") equal to six percent (6.0%) of the aggregate gross proceeds to [GPB] (i.e., the par amount of such Securities). Notwithstanding the foregoing, the Transaction Fee with respect to any Securities sold to shareholders existing as of the date hereof or to [GPB's] directors or officers will be one percent (1.0%) of such aggregate gross proceeds to [GPB]. For purposes of clarity, no Transaction Fee shall be payable with respect to capital, if any, raised by [GPB] ...

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