ITEM 7 (c) 2.2
AMENDMENT NO. 1
This Amendment No. 1 (the "Amendment"), dated May __, 1997, is hereby
made to the Merger Agreement dated April 22, 1997 (the "Agreement"), by and
between 1st United Bank, a Florida chartered bank ("1st United"), Seaboard
Savings Bank, F.S.B., a federal savings bank ("Seaboard") and 1st United
Bancorp, a Florida bank holding company ("Bancorp"), (1st United, Seaboard and
Bancorp are collectively referred to herein as the "Parties").
WHEREAS, the Parties have agreed that it is necessary to amend the
provisions in the Agreement dealing with the election of the composition of the
Merger Consideration to be delivered to the Seaboard Stockholders and to assure
that the aggregate Merger Consideration is allocated in a manner consistent with
the elections of the Seaboard Stockholders without causing either the Stock
Component or the Cash Component to exceed fifty percent (50%) of the Aggregate
Consideration.
WHEREAS, the Parties wish to modify the Agreement as provided herein;
NOW, THEREFORE, in consideration for the premises and mutual promises
contained therein, the Parties agree as follows:
(1) The foregoing recitations are incorporated into and comprise a part
of this Amendment.
(2) Unless otherwise defined herein, any capitalized term used herein
shall have the meaning ascribed to such term in the Agreement.
(3) Section 2.6(v) is hereby amended to read as follows:
(v) An election form ("Election Form") shall be prepared by
Bancorp and mailed by Seaboard to each of the Seaboard Stockholders
with the Definitive Seaboard Proxy Materials.
Each Election Form shall permit the holder to elect to receive
only Bancorp Purchase Stock with respect to such holder's Seaboard
Stock ("Stock Election Shares"), to elect to receive only cash with
respect to such holder's Seaboard Stock ("Cash Election Shares"), to
receive fifty percent (50%) cash and fifty percent (50%) Bancorp
Purchase Stock with respect to such holder's Seaboard Stock ("Equal
Election Shares") or to indicate that such holder makes no election
("No Election Shares").
Any Seaboard Stock with respect to which the holder shall not
have submitted to Bancorp an effective, properly completed Election
Form, on or before 5:00 p.m. on the date of the Special Seaboard
Meeting (or such other time
and date as Bancorp and Seaboard may mutually agree) (the "Election
Deadline") shall be deemed to be "No Election Shares." Any such
election shall have been properly made only if Bancorp shall have
actually received a properly completed Election Form by the Election
Deadline. Any Election Form may be revoked or changed by the person
submitting such Election Form at or prior to the Election Oeadline.
Subject to the terms of this Agreement and of the Election Form,
Bancorp shall have reasonable discretion to determine whether any
election, revocation or change has been properly or timely made and to
disregard immaterial defects in the Election Forms, and any good faith
decisions of Bancorp regarding such matters shall be binding and
conclusive. Bancorp shall be under no obligation to notify any person
of any defect in an Election Form.
On or before the Closing Date, Bancorp shall compute the
allocation among the holders of Seaboard Stock of rights to receive
Bancorp Purchase Stock or cash in the Merger in accordance with the
Election Forms, communicate that computation to Seaboard and thereafter
cause the Transfer Agent to effecl the distribution of the Merger
Consideration as follows:
(a) CALCULATION OF EQUAL ELECTION CONSIDERATION. Bancorp shall
calculate the value of the Merger Consideration to be delivered to the
holders of Equal Election Shares in accordance with their elections
(the "Equal Election Consideration") and the value of the Merger
Consideration minus the Equal Election Consideration (the "Remaining
Consideration").
(b) STOCK ELECTIONS LESS THAN STOCK COMPONENT. If the number
of shares of Bancorp Purchase Stock that would be issued upon
conversion of the Stock Election Shares and the Equal Election Shares
is less than the Stock Component, then:
1. All of the Equal Election Shares shall be
converted into the right to receive fifty percent (50%) Bancorp
Purchase Stock and fifty percent (50%)cash;
2. Then, to the extent necessary to assure thatfifty
percent (50%) of the value of the Remaining Consideration is comprised
of Bancorp Purchase Stock:
A. first, all Stock Election Shares shall be
converted, pro rata, into the right to receive Bancorp Purchase Stock;
B. second, all of the No Election Shares
shall be converted, pro rata, into the right to receive Bancorp
Purchase Stock; and
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C. third, all of the Cash Election Shares
shall be converted, pro rata, into the right to receive Bancorp
Purchase Stock.
3. The balance of the Seaboard Shares shall be
converted into the right to receive cash.
4. Notwithstanding anything to the contrary contained
herein, the Seaboard Stock shall be allocated in the order provided
above to the extent necessary to assure that the value of the Bancorp
Purchase Stock equals fifty percent (50%) of the Merger Consideration.
In no event shall the value of the Bancorp Purchase Stock be less than
fifty percent (50%) of the Merger Consideration.
c) STOCK ELECTIONS MORE THAN STOCK COMPONENT. If the number of
shares of Bancorp Purchase Stock that would be issued upon the
conversion of the Stock Election Shares and the Equal Election Shares
into Bancorp Purchase Stock is greater than the Stock Component, then:
1. All of the Equal Election Shares shall be
converted into the right to receive fifty percent (50%) Bancorp
Purchase Stock and fifty percent (50%) cash;
2. Then, to the extent necessary to assure thatfifty
percent (50%) of the Remaining Consideration is comprised of cash:
A. first, all Cash Election Shares shall be
converted, pro rata, into the right to receive cash;
B. second, all of the No Election Shares
shall be converted, pro rata, into the right to receive cash; and
C. third, all of the Stock Election Shares
shall be converted, pro rata, into the right to receive cash.
3. The balance of the Seaboard Shares shall be
converted into the right to receive Bancorp Purchase Stock.
4. Notwithstanding anything to the contrary herein,
the Seaboard Stock shall be allocated in the order provided above to
the extent necessary to assure that the value of the Cash Component
equals fifty percent (50%) of the Merger Consideration. In no event
shall the value of the Cash Component be less than fifty percent (50%)
of the Merger Consideration.
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(4) Except as expressly provided herein, nothing in this Amendment
shall be construed to modify or supersede any of the Partiesi rights and
obligations previously set forth in tile Agreement. In the event the terms of
the Agreenient and this Amendment conflict, the terms of this Amendment shall
control. The Agreement, in conjunction with this Amendment, shall represent the
Parties complete understanding on the subject matters contained therein.
(5) This Agreement may be executed in any number of counterparts, each
of which, when so executed, shall constitute an original copy hereof, but all
of which together shall constitute but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first provided above.
1ST UNITED BANCORP
By: /s/ Xxxxxx X. Xxxxxxx
Title: _________________________________
Date: __________________________________
1ST UNITED BANK
By: /s/ Xxxxxx X. Xxxxxxx
Title: _________________________________
Date: __________________________________
SEABOARD SAVINGS BANK, F.S.B.
By: /s/ Xxxxxxx Xxxxxxx
Title: _________________________________
Date: __________________________________
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