CAPITAL CONTRIBUTION AGREEMENT
THIS CAPITAL CONTRIBUTION AGREEMENT dated as of August __, 1998 is
made and entered into by and between Imperial Financial Group, Inc., a Delaware
corporation ("IFG") and Crown American Bank, a California industrial loan
corporation ("Crown"), on the one hand, and Imperial Bank, a California banking
corporation (the "Bank"), and Imperial Bancorp, a California corporation
("Imperial Bancorp"), on the other hand, with reference to the following:
A. The Bank owns all of the issued and outstanding Class A Common
Stock, no par value, of IFG ("IFG Class A Common").
B. The Bank is the owner of all of the outstanding shares of capital
stock of Imperial Trust Company, a California licensed trust company ("Trust
Co."), 8,941,106 shares of common stock (the "ICII Stock") of Imperial Credit
Industries, Inc. ("ICII"), all rights under that certain Agreement dated as of
August 3, 1998 between IFG and Bear, Xxxxxxx & Co. Inc., all of the outstanding
equity securities of Crown, and all of the assets comprising an operating
division known as the Xxxxx Xxxxxxx Organization. The foregoing securities and
assets are collectively referred to as the "Contributed Assets".
C. The Bank has contributed the SBA Division (as defined herein) to
Crown and upon the Distribution will contribute 100% of the equity securities of
Crown and the remaining Contributed Assets to IFG.
D. IFG wishes to accept the Contributed Assets as a contribution to
capital.
E. Thereafter, the Bank wishes to distribute the IFG Class A Common
to Imperial Bancorp.
F. Imperial Bancorp then wishes to distribute the IFG Class A Common
to holders of shares of Imperial Bancorp common stock in accordance with the
provisions of this Agreement.
G. It is intended that for United States federal income tax purposes
the Distribution shall qualify as a tax-free distribution pursuant to the
provisions of Section 355 of the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
When used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Affiliate" shall mean with respect to any person or entity (i) a
person or entity directly or indirectly controlling, controlled by or under
common control with such person or entity; (ii) a person or entity owning or
controlling 10% or more of the outstanding voting securities of such person or
entity; or (iii) an officer, director or partner of such person or entity. When
the Affiliate is an officer, director or partner of such person or entity, any
other person or entity for which the Affiliate acts in that capacity shall also
be considered an Affiliate. For these purposes, control means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean the distribution agent to be appointed by Imperial
Bancorp to distribute the shares of IFG Class A Common in the Distribution.
"Agreement" shall mean this Capital Contribution Agreement, including
all exhibits hereto, as the same may hereafter be amended, modified or
supplemented from time to time.
"Asset" shall mean any and all right, title and interest in and to all
of the rights, properties, assets, claims, Contracts and businesses of every
kind, character and description, whether real, personal or mixed, whether
tangible or intangible, whether accrued, contingent or otherwise, and wherever
located but, except as reflected on the Opening IFG Balance Sheet, excluding all
cash and cash equivalents. Without limitation, the term Assets shall include
(i) notes, prepaid expenses and accounts receivable (whether current or non-
current); (ii) all capital stock, partnership interests and other equity or
ownership interests or rights, directly or indirectly, in any entity; (iii) all
investment securities including, without limitation, debentures, evidences of
indebtedness, certificates of interest or participation, collateral trust
certificates, preorganization certificates or subscriptions, investment
contracts, foreign currency and interest rate contracts (including, without
limitation, forward, option, cap and swap contracts), trust certificates, puts,
calls, straddles, options and other securities or hedging arrangements of any
kind; (iv) all registered and unregistered trademarks, service marks, service
names, trade styles and trade names (including, without limitation, trade dress
and other names, marks and slogans) and all associated goodwill; all statutory,
common law and registered copyrights; all patents; all applications for any of
the foregoing together with all rights to use all of the foregoing and all other
rights in, to, and under the foregoing; all know-how, inventions, discoveries,
improvements, processes, formulae (secret or otherwise), specifications, trade
secrets, whether patentable or not, licenses and other similar agreements,
confidential information, and all drawings, records, books or other indicia,
however evidenced, of the foregoing; (v) all Contracts and rights existing
thereunder and under all other business arrangements; (vi) all interests in real
estate and all plants, buildings and other improvements thereon; (vii) all
leasehold improvements and all equipment (including all transportation and
office equipment), fixtures, trade fixtures and furniture; (viii) all
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supplies and other tangible property of any kind; (ix) all computer hardware,
software, computer programs, systems and codes and documentation relating
thereto and all databases and reference and resource materials; (x) all
prepayments of prepaid expenses; (xi) all claims, causes of action, choses in
action, rights under express or implied warranties, rights of recovery and
rights of set-off of any kind (collectively "Claims"); (xii) all customer lists
and records pertaining to customers and accounts, personnel records, all fiats
and records pertaining to suppliers and agents, and all books, ledgers, files
and business records of every kind; (xiii) all advertising materials and all
other printed or written materials; (xiv) all permits, consents, licenses,
approvals and authorizations issued by any Authority or third party; (xv) all
goodwill as a going concern and all other intangible properties; and (xvi) all
employee contracts, including, without limitation, the right thereunder to
restrict the employee from competing in certain respects.
"Authority" shall mean any governmental, regulatory or administrative
body, agency or authority, any court of judicial authority, any arbitrator or
any public, private or industry regulatory authority, whether international,
national, Federal, state or local.
"Bank Documents" shall mean this Agreement and all other agreements
and instruments to be executed by the Bank or Imperial Bancorp in connection
with this Agreement.
"Closing" shall mean the consummation of the transactions contemplated
in this Agreement
"Closing Date" shall mean the date upon which the Closing occurs.
"Contract" shall mean any contract, agreement, lease, license, sales
order, purchase order, instrument or other commitment, written or oral, that is
binding on any person or entity or any part of its property under Law.
"Contributed Assets" shall have the meaning ascribed to such term in
Recital B hereof.
"Crown" shall mean Crown American Bank, a California industrial loan
company.
"Distribution" shall mean (i) the distribution of IFG Class A Common
to Imperial Bancorp by the Bank and, immediately thereafter, (ii) the
distribution of IFG Class A Common to holders of shares of Imperial Bancorp
Common Stock to be effected on the basis of one share of IFG Class A Common for
every two shares of Imperial Bancorp Common Stock held of record as of the
Record Date.
"Distribution Time" shall mean the date and time as of which the
Distribution shall be effected, as determined by the respective Boards of
Directors of the Bank and Imperial Bancorp.
"Effective Time" shall mean 12:01 a.m. Los Angeles time on the Closing
Date.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
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"Form 10" shall mean the Registration Statement on Form 10 (Commission
File No. 1-135971) of IFG initially filed under the Securities Exchange Act of
1934 on November 10, 1997 and all amendments thereto.
"IFG Businesses" means the businesses conducted on, prior to or after
the Effective Time by IFG, the LHO Division, the SBA Division, Trust Co. or
Crown.
"IFG Employees" shall mean those persons listed on Exhibit "A"
attached hereto.
"Imperial Bancorp Common Stock" shall mean the Common Stock, no par
value per share, of Imperial Bancorp.
"Information Statement" shall mean the information statement to be
sent to the holders of Imperial Bancorp Common Stock in connection with the
Distribution.
"Law" shall mean any law, statute, regulation, ordinance, requirement,
announcement or other binding action or requirement of an Authority.
"Liability" shall mean, with respect to any person or entity, any
direct or indirect liability (whether absolute, accrued or unaccrued,
contingent, liquidated or unliquidated, matured or unmatured, reflected on a
balance sheet (or in the notes thereto) or otherwise, and whether known or
unknown), indebtedness, obligation, expense, claim, deficiency, guarantee or
endorsement of or by such person or entity (including without limitation, those
arising under any Law or pending or future Order, and those arising under any
Contract or undertaking).
"LHO Division" shall mean all of the Assets and Liabilities relating
to or arising out of the Bank's operating division known as the Xxxxx Xxxxxxx
Organization, as such division is described under the heading "LHO" in the Form
10. The material Contracts relating to the LHO Division include those listed on
Exhibit "B".
"Losses" shall have the meaning ascribed to it in Section 12.1.
"Opening IFG Balance Sheet" shall mean the balance sheet of IFG as of
the Effective Time reflecting the contribution transactions contemplated by this
Agreement.
"Order" shall mean any decree, order, judgment, writ, award,
injunction, rule or consent of or by an Authority.
"Record Date" shall mean the close of business on the date to be
determined by the Board of Directors of Imperial Bancorp, as the record date for
determining shareholders of Imperial Bancorp entitled to receive the
Distribution.
"Ruling" shall mean the favorable ruling requested by the Ruling
Request.
"Ruling Request" shall mean that certain Request for Ruling submitted
by KPMG Peat Marwick LLP on behalf of Imperial Bancorp dated April 11, 1997, as
modified, supplemented or amended, requesting a favorable ruling from the
Internal Revenue Service to the
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effect that certain "spin off" transactions, including the transactions
contemplated by this Agreement, will not be taxable to Imperial Bancorp, its
shareholders or the Bank.
"SBA Division" shall mean all of the Assets and Liabilities relating
to or arising out of the Bank's small business administration lending group
division, as such division is described under the heading "CAB" in the Form 10.
The material Contracts relating to the LHO Division include those listed on
Exhibit "C".
"Services Agreement" shall mean the Services Agreement dated as of the
date hereof between the Bank and IFG.
"Tax Sharing Agreement" shall mean that certain Tax Sharing Agreement
dated as of the date hereof between Imperial Bancorp and IFG.
"Taxes" shall have the meaning ascribed to it in the Tax Sharing
Agreement.
"Transferee Documents" shall mean this Agreement and all other
agreements and instruments to be executed and delivered by IFG, Crown and/or
Trust Co. in connection with this Agreement.
ARTICLE II
CONTRIBUTION
2.1 Contribution by the Bank. Subject to, and in reliance upon the
representations, warranties, terms and conditions of this Agreement, at the
Closing (as defined below):
(a) the SBA Division shall have been contributed by the Bank to
the capital of Crown; and
(b) the Bank shall contribute the following to the capital of
IFG:
(i) all of the issued and all outstanding securities of
Crown;
(ii) all of the ICII Stock owned beneficially and of record
at the Closing by the Bank;
(iii) all of the issued and outstanding securities of Trust
Co.; and
(iv) the LHO Division.
Except as set forth herein, the foregoing Contributed Assets are being assigned
and quit claimed on an "as is", "where is" basis and without any representation
or warranty of any kind whatsoever.
Notwithstanding anything to the contrary contained in this Agreement,
this Agreement shall not constitute an agreement to assign, convey or transfer
any action, claim or other Liability, Asset or Contract or any claim or right or
any benefit arising thereunder or
-5-
resulting therefrom as to which (x) a prior right of assignment, conveyance or
transfer exists which has not been waived as of immediately prior to the
Effective Time or (y) any consent to assignment, conveyance or transfer thereof
is required but has not been obtained as of immediately prior to the Effective
Time. Subject to the preceding sentence and the provisions of Section 15.2, to
the extent that any such assignment and transfer shall not have been so
consummated as of immediately prior to the Effective Time, the parties shall use
their commercially reasonable efforts to effect such consummation as promptly
thereafter as shall be practicable, and as between IFG and the Bank, effective
as of immediately prior to the Effective Time, the Bank shall be deemed to have
contributed to Crown and IFG (as applicable), and such entity shall have and be
deemed to have obtained, complete and sole beneficial ownership over all of the
Contributed Assets to be contributed to such entity, together with all of the
rights, powers and privileges incident thereto which are held by the Bank, and
such entity shall be deemed to have assumed, effective as of immediately prior
to the Effective Time, in accordance with the terms of this Agreement all of the
Liabilities to be assumed by it pursuant to Article III hereto and all of the
duties, obligations and responsibilities of the Bank incident thereto, whether
or not all instruments of transfer and assumption shall have been executed and
delivered.
2.2 Net Book Value. The parties agree and accept the Opening IFG
--------------
Balance Sheet, including the value of all reserves shown thereon, which shall be
calculated after giving effect to the sharing of Transaction Taxes (as defined
in the Tax Sharing Agreement) and the other transaction costs relating to the
Distribution.
2.3 Prorations. All ordinary and day-to-day expenses and obligations
----------
related to the Contributed Assets (other than employee related sick pay
expenses) to be acquired by IFG and Crown pursuant to the terms of this
Agreement will be prorated as of the Effective Time, with the Bank being
responsible for that portion relating to the period prior thereto and IFG and/or
Crown (as applicable) being responsible for that portion relating to the period
subsequent thereto. A final determination of the prorations and other
adjustments pursuant to the provisions of this Section 2.3 shall be made by the
Bank with the full cooperation of Crown and IFG, and a statement thereof
prepared by the Bank and certified to by its Chief Financial Officer shall be
delivered to IFG not later than 45 days after the Closing Date. Such statement
shall contain a reasonably-detailed breakdown of each proration and shall be
accompanied by supporting documentation if such documentation is reasonably
available to the Bank. IFG shall review such statement and if IFG disapproves of
any determination contained in such statement it shall give the Bank written
notice stating its objections thereto and identifying the reasons therefor
within 30 days after receipt of such statement. The Bank and IFG shall then
attempt to agree on the amount of each determination to which any party objects
within 15 days thereafter. The payment required under the statement shall be
made by the party responsible therefor to the other party promptly and in any
event within 20 days after the parties agree to the applicable proration and
shall be made by check. If any item contemplated by this Section 2.3 cannot be
prorated as of the date the statement is otherwise required to be delivered,
then it shall be separately prorated as soon as possible thereafter with payment
of an amount equal to the amount charged against either party being paid by that
party to the other by check within five days after determination of the charge.
Any disagreement between the Bank and IFG respecting prorations shall be settled
by KPMG Peat Marwick, whose determination shall be final, absent manifest error.
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ARTICLE III
ASSUMPTION OF LIABILITIES
3.1 Liabilities Assumed.
-------------------
(a) Subject to Sections 2.3 and 3.2, Crown shall assume,
perform, discharge and pay when due all Liabilities relating to or arising out
of the SBA Division whether such Liabilities arose prior to, or arise on or
after the Effective Time and whether or not such Liabilities are reflected in
the Opening IFG Balance Sheet.
(b) Subject to Sections 2.3 and 3.2, IFG shall, from and after
the Effective Time, assume, perform, discharge and pay (or cause to be assumed,
performed, discharged and paid) when due all Liabilities relating to or arising
out of the Contributed Assets whether such Liabilities arose prior to, or arise
on or after the Effective Time and whether or not such Liabilities are reflected
in the Opening IFG Balance Sheet. Except as contemplated in Sections 2.3 and
3.2, such Liabilities shall include all Liabilities relating to or arising out
of the following:
(i) all past and present employment relationships and
contracts of IFG Employees, including all accrued vacation, sick leave
and other benefits;
(ii) loans relating to the IFG Businesses, heretofore sold
individually or as part of a pool to any third party; and
(iii) all Liabilities relating to that certain Consulting
Agreement, dated as of November 1, 1991, between the Bank and Second
Southern Corp.
(c) Subject to Section 3.2 below, the Bank shall, from and
after the Effective Time, perform, discharge and pay when due, and remain liable
for, as the case may be, all Liabilities relating to or arising out of any
business or Assets other than the Contributed Assets, whether such Liabilities
arose prior, to, or arise on or after the Effective Time, including, without
limitations, the loans set forth on Exhibit "D" attached hereto.
It is the intention of the parties that the foregoing
assumption of Liabilities be construed in the broadest sense as if Crown
and IFG were stand-alone companies owning their respective Contributed
Assets from the inception of all business activities relating to or arising
out of the Contributed Assets.
3.2 Liabilities for Taxes. The provisions of this Agreement relating
---------------------
to the assumption of Liabilities shall not apply to Liabilities relating to
Taxes, which shall be governed by the Tax Sharing Agreement.
3.3 Transaction Suits.
-----------------
(a) Following the date hereof, in the event that any action,
claim, suit, arbitration, inquiry, proceeding or investigation by or before any
Authority is commenced against
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the Bank, Imperial Bancorp or IFG, or any of their respective Affiliates
challenging the transactions contemplated by this Agreement ("Transaction
Suits"), such Transaction Suits shall be deemed a Liability of the Bank not
assumed by IFG pursuant to Section 3.1 hereof.
(b) Following the Distribution Time, IFG shall be entitled to
participate in the defense of each Transaction Suit to which it or any of its
subsidiaries or any of their respective officers, directors, employees or
consultants is a party and to employ counsel of its choice and at its sole cost
and expense to assist in the handling of such suit. Following the Distribution
Time, Imperial Bancorp shall not settle any Transaction Suite to which IFG or
any such person or entity is a party, without the prior written consent of IFG
(which consent shall not be unreasonably withheld), unless such settlement (i)
includes a complete release of IFG or such other person or entity, as the case
may be, and (ii) does not require IFG to make any payment or forego or take any
action.
ARTICLE IV
CLOSING
4.1 Time and Place. The closing of the transactions contemplated
--------------
hereby shall take place at a location mutually agreed upon by the parties at
10:00 a.m. local time on October 1, 1998 (the "Closing").
4.2 Transactions at Closing. At Closing, the following acts and
-----------------------
deliveries shall occur:
(a) The Bank shall deliver the appropriate stock assignment,
bills of sale and other instruments of conveyance respecting the Contributed
Assets in form and substance satisfactory to legal counsel to IFG;
(b) the Bank and IFG shall execute and deliver the Services
Agreement;
(c) Imperial Bancorp and IFG shall execute and deliver the Tax
Sharing Agreement;
(d) Imperial Bancorp shall deliver to the Agent a share
certificate or certificates issued to Imperial Bancorp by IFG, representing all
of the outstanding shares of IFG Class A Common to be distributed in connection
with the payment of the Distribution;
(e) Imperial Bank shall distribute as of the Distribution Time to
Imperial Bancorp, as its sole stockholder, all of the outstanding shares of IFG
Class A Common;
(f) Imperial Bancorp shall instruct the Agent to distribute, as
of the Distribution Time, to holders of record of Imperial Bancorp Common Stock
on the Record Date, one share of IFG Class A Common in respect of each two
shares of Imperial Bancorp Common Stock held by such holders of record of
Imperial Bancorp Common Stock on the Record Date; and
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(g) IFG, the Bank and Imperial Bancorp shall deliver the
certificates referenced in Article VIII.
The foregoing transactions shall be deemed to occur simultaneously at the
Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
THE BANK AND IMPERIAL BANCORP
The Bank and Imperial Bancorp hereby jointly and severally represent
and warrant to IFG that:
5.1 Due Incorporation. Each of the Bank and Imperial Bancorp is duly
-----------------
organized, validly existing and in good standing under the laws of the State of
California.
5.2 Authority to Execute and Perform Agreements. Each of the Bank
-------------------------------------------
and Imperial Bancorp has all requisite power, authority and approvals required
to enter into, execute and deliver this Agreement and all of the other Bank
Documents and to perform its obligations hereunder and thereunder.
5.3 Due Authorization; Enforceability. Each of the Bank and Imperial
---------------------------------
Bancorp has taken all actions necessary to authorize it to enter into and
perform fully its obligations under this Agreement and all of the other Bank
Documents and to consummate the transactions contemplated herein and therein.
This Agreement is, and as of the Closing Date, the other Bank Documents will be,
the legal, valid and binding obligations of the Bank and Imperial Bancorp,
enforceable in accordance with their respective terms.
5.4 No Violation. Neither the execution or delivery by the Bank or
------------
Imperial Bancorp of this Agreement or any of the Bank Documents nor the
consummation of the transactions contemplated herein or therein will violate any
provision of the Articles of Incorporation, bylaws or other charter documents of
the Bank or Imperial Bancorp, any Order or any, to the best knowledge of Bank
and Imperial Bancorp, Contracts of the Bank or Imperial Bancorp not transferred
to IFG or its subsidiaries as part of the Contributed Assets.
5.5 Regulatory Approvals. All consents, approvals, authorizations and
--------------------
other requirements described by any Law or Order or third person which must be
obtained or satisfied by the Bank or Imperial Bancorp and which are necessary
for the execution and delivery by the Bank or Imperial Bancorp of this Agreement
and all other Bank Documents and the consummation of the transactions
contemplated by this Agreement will be obtained and satisfied prior to the
Closing, other than those consents, approvals, authorizations or other
requirements, the failure of which to obtain or satisfy would not have a
material adverse effect on the IFG Businesses; provided, however, that no
representation is made hereunder with respect to consents of third persons that
pertain to Contracts constituting Contributed Assets.
5.6 Litigation. Except as set forth on Exhibit "E", there are no
----------
actions, suits, hearings or proceedings of any kind pending, or to the knowledge
of the office of the General
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Counsel of the Bank and Imperial Bancorp, threatened, before or by any Authority
that relate to, or arise from or are in any way connected with, the Contributed
Assets.
5.7 Title to Contributed Assets. The Bank has, and immediately
---------------------------
following the Effective Date, IFG will have, good, valid and marketable title
to, or a valid leasehold, license or other appropriate interest in, all of the
Contributed Assets, in each case free and clear of all liens, charges, security
interests, mortgages or other encumbrances of any nature whatsoever, other than
liens for taxes not yet due and payable.
5.8 Representations and Warranties on Closing. The representations
-----------------------------------------
and warranties contained in this Article V shall be true and complete in all
material respects at and as of the Effective Time with the same force and effect
as though such representations and warranties had been made at and as of the
Effective Time.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF IFG
IFG represents and warrants to the Bank and Imperial Bancorp as
follows:
6.1 Due Incorporation. IFG is a corporation duly organized, validly
-----------------
existing and in good standing under the Laws of its jurisdiction of
incorporation.
6.2 Authority to Execute and Perform Agreements. IFG has all
-------------------------------------------
requisite power, authority and approval required to enter into, execute and
deliver this Agreement and the other Transferee Documents and to perform fully
its obligations hereunder and thereunder.
6.3 Due Authorization: Enforceability. IFG has taken all actions
---------------------------------
necessary to authorize it to enter into and perform its obligations under this
Agreement and all other Transferee Documents and to consummate the transactions
contemplated herein and therein. This Agreement is, and as of the Closing Date,
such other Transferee Documents will be, the legal, valid and binding
obligations of IFG, enforceable in accordance with their respective terms.
6.4 No Violation. Neither the execution and delivery of this
------------
Agreement and all other Transferee Documents nor the consummation of the
transactions contemplated herein and therein will violate any provision of the
charter documents of IFG or Crown.
6.5 Regulatory Approvals. All consents, approvals, authorizations and
--------------------
other requirements prescribed by any Law or Order or which must be obtained or
satisfied by IFG and Crown and which are necessary for the execution and
delivery by IFG of this Agreement and all other Transferee Documents and the
consummation of the transactions contemplated by this Agreement will be obtained
and satisfied prior to the Closing, other than those consents, approvals,
authorizations or other requirements, the failure of which to obtain or satisfy
would not have material adverse effect on Imperial Bancorp or the Bank.
6.6 Representations and Warranties on Closing Date. The
----------------------------------------------
representations and warranties contained in this Article VI shall be true and
complete at and as of the Effective Time
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with the same force and effect as though such representations and warranties had
been made at and as of the Effective Time.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATION
OF EACH PARTY TO CLOSE
The obligations of each party to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing of all of the conditions set forth below in this Article VII. The
parties may waive any or all of such conditions in whole or in part without
prior notice; provided, however, that no such waiver shall constitute a waiver
by any party of any other right or remedy if any other party shall be in default
of any of its respective representations, warranties or covenants contained in
this Agreement.
7.1 No Action or Proceeding. No action, suit or proceeding shall have
-----------------------
been instituted or threatened before any Authority seeking to challenge or
restrain the transactions contemplated herein which presents a substantial risk
that such transactions will be restrained or that either party hereto may suffer
material damages or other relief as a result of consummating such transactions.
7.2 Compliance With Law. The transactions contemplated hereby shall
-------------------
be in compliance in all material respects with all applicable federal and state
securities laws and the Form 10 shall have been declared effective under the
Exchange Act by the SEC.
7.3 Declaration of Distribution. The Distribution shall have been
---------------------------
declared and the Record Date shall have been set by Imperial Bancorp's Board of
Directors.
7.4 Acceptance for Listing. The IFG Class A Common shall have been
----------------------
accepted for listing for quotation on the New York Stock Exchange.
7.5 Consents and Approvals. All consents of, approvals of, notices
----------------------
to, and filings with, any Authority or any other person or entity necessary to
consummate the transactions contemplated hereby shall have been obtained and be
in full force and effect, other than consents, approvals, notices or filings,
the failure of which to obtain or satisfy would not have a material adverse
effect on IFG or the Bank.
7.6 Credit Agreement. The credit agreements to be entered into by
----------------
Bank and assumed by IFG as contemplated by the Information Statement shall be in
place and all conditions to borrowing thereunder shall have been satisfied.
7.7 Ruling Request. The Ruling shall have been issued and approved by
--------------
the parties hereto.
7.8 Opening IFG Balance Sheet. The parties shall have approved the
-------------------------
Opening IFG Balance Sheet which approval shall be final and binding on the
parties. Such Opening IFG Balance Sheet shall reflect a net book value as
contemplated in
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the Form 10 which shall equal a net book value of $27,000,000 plus the after-tax
book value of the ICII Stock.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATION
OF IFG TO CLOSE
The obligation of IFG to consummate the transactions contemplated
herein shall be subject to the fulfillment, at or before the Closing Date, of
all of the conditions set forth below in this Article VIII. IFG may waive any or
all of such conditions in whole or in part without prior notice; provided,
however, that no such waiver shall constitute a waiver by IFG of any right or
remedy otherwise available to it if the Bank or Imperial Bancorp shall be in
default of any of its representation, warranties or covenants contained in this
Agreement.
8.1 Representations and Warranties. The representations and
------------------------------
warranties of the Bank and Imperial Bancorp contained in this Agreement and in
any Bank Document shall be true on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date and the Bank and
Imperial Bancorp shall have delivered a certificate to IFG to that effect dated
the Closing Date.
8.2 Performance of Covenants. Each obligation of the Bank and
------------------------
Imperial Bancorp to be performed by it on or before the Closing Date pursuant to
the terms of this Agreement and any Bank Document shall have been duly performed
on or before the Closing Date and the Bank and Imperial Bancorp shall have
delivered a certificate to IFG to that effect dated the Closing Date.
8.3 Certain Agreements and Instruments. IFG and Crown shall have
----------------------------------
received at the Closing the agreements, documents and instruments referred to in
Article IV to be delivered to each of them by the Bank and Imperial Bancorp at
the Closing.
ARTICLE IX
CONDITIONS PRECEDENT TO THE OBLIGATION
OF THE BANK AND IMPERIAL BANCORP TO CLOSE
The obligation of the Bank and Imperial Bancorp to consummate the
transactions contemplated herein shall be subject to the fulfillment, at or
before the Closing Date, of all the conditions set forth below in this Article
IX. The Bank and Imperial Bancorp may waive any or all of such conditions in
whole or in part without prior notice; provided, however, that no such waiver
shall constitute a waiver by the Bank or Imperial Bancorp of any right or remedy
otherwise available to either of them if IFG shall be in default of any of its
representations, warranties or covenants contained in this Agreement.
9.1 Representations and Warranties. The representations and
------------------------------
warranties of IFG contained in this Agreement and in any Transferee Document
shall be true on and as of the Closing Date with the same force and effect as
though made on and as of the Closing Date and
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IFG shall have delivered a certificate to the Bank and Imperial Bancorp to that
effect dated the Closing Date.
9.2 Performance of Covenants. Each of the obligations of IFG to be
------------------------
performed by it on or before the Closing Date pursuant to the terms of this
Agreement and any Transferee Document shall have been duly performed on or
before the Closing Date and IFG shall have delivered a certificate to the Bank
and Imperial Bancorp to that effect dated the Closing Date.
9.3 Certain Agreements and Instruments. Bank shall have received at
----------------------------------
the Closing the agreements, documents and instruments referred to in Article IV
to be delivered to the Bank and Imperial Bancorp by IFG at the Closing.
ARTICLE X
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
OF THE PARTIES
Each representation, warranty, covenant and agreement of any party
hereto contained herein or in any Bank Document or Transferee Document shall
survive the execution and delivery of this Agreement and the Closing.
ARTICLE XI
COVENANTS AND AGREEMENTS OF THE PARTIES AFTER CLOSING
11.1 Competitive Activities. Each of the parties acknowledges that
----------------------
each of them will be in competition with one another from and after the
Effective Time and that there exist no express or implied covenants or
agreements whatsoever regarding competition or use of confidential or
proprietary information in respect of a party's historical activities, except to
the extent such use is prohibited or restricted by applicable Law.
Notwithstanding the foregoing, except as contemplated by Section 3.1, no party
shall hire or otherwise engage in a compensatory relationship with any employee
of any other party for a period of 24 months following the Closing Date.
11.2 Dispute Assistance. If, after the Effective Time, any dispute
------------------
arises between a third party and a party hereto (the "Affected Party"), or its
successors-in-interest, with respect to the business, operations or assets
comprising the Contributed Assets, each party shall cooperate with the Affected
Party, or its successors-in-interest, at no cost to the Affected Party or its
successors-in-interest in the resolution of such dispute; provided, however,
that a party's agreement so to cooperate shall not be deemed an acceptance by
such party of any liability arising from such dispute, as to which the other
provisions of this Agreement shall control. Without limiting the generality of
the foregoing, a party shall make available to the Affected Party or its
successors-in-interest (i) any and all files and business records in a party's
custody or control which, in the reasonable opinion of the Affected Party, or
its successors-in-interest, may be necessary or useful in connection with such
litigation or resolution of such dispute and (ii) any and all individuals
employed by a party whose testimony or knowledge, in the opinion of the Affected
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Party or its successors-in-interest, may be necessary or useful in such
litigation or resolution of such dispute.
11.3 IFG Employees. As of the Effective Time, IFG or Crown shall hire
-------------
the IFG Employees. As of the Effective Time, stock options held by such
employees to purchase Imperial Bancorp Common Stock shall be canceled and IFG
shall issue to such employees options to acquire shares of IFG Class A Common
Stock, as determined by IFG in its sole discretion. Such options shall be upon
terms and conditions similar to those of the canceled options to acquire
Imperial Bancorp Common Stock, such that the IFG employees receive an economic
position in IFG equivalent to the prior economic position in Imperial Bancorp
attributable to the canceled Imperial Bancorp stock options.
11.4 Insurance. Each of the Bank and Imperial Bancorp covenant and
---------
agree that, following the Effective Time, it shall maintain in full force and
effect all insurance policies applicable to Trust Co., the SBA Division and the
LHO Division until the current expiration dates of such policies. Bank shall
provide IFG with written notification no less than 45 days prior to the
expiration of any such policy.
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by the Bank. Notwithstanding any other provision
---------------------------
in this Agreement, the Bank shall indemnify, defend and hold harmless (i) IFG
and Crown, (ii) each of their respective successors and assigns, and (iii) each
of their respective Affiliates, shareholders, directors, officers, employees,
agents, attorneys and representatives, from and against any and all losses,
damages, awards, judgments, costs and expenses and other payments including,
without limitation, all costs and expenses of investigating any claim, lawsuit
or arbitration and any appeal therefrom, all reasonable attorneys' fees incurred
in connection therewith, and all amounts paid incident to any compromise or
settlement of any such claim, lawsuit or arbitration (collectively "Losses")
which may be incurred or suffered by any such party and which may arise out of
or result from:
(a) any breach of any representation, warranty, covenant or agreement
of the Bank or Imperial Bancorp contained in this Agreement or in any other Bank
Document;
(b) any Liability other than a Liability assumed by IFG or Crown
pursuant to Section 3.1, including, but not limited to, any Liability arising
from any Transaction Suit and any Liability with respect to any third party
arising out of any actual or alleged misstatement or omission of material fact
by the Bank or Imperial Bancorp in connection with the Form 10, including the
Information Statement set forth therein, ; and
(c) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation,
reasonable legal fees and expenses, incurred in enforcing this indemnity.
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12.2 Indemnification by IFG. Notwithstanding any other provision in
----------------------
this Agreement, IFG shall indemnify, defend and hold harmless (i) Imperial
Bancorp, (ii) the Bank, (iii) each of their respective successors and assigns
(other than IFG and Crown), and (iv) each of their respective Affiliates,
shareholders, directors, officers, employees, agents, attorneys, beneficiaries
and representatives, from and against any and all Losses which may be incurred
or suffered by any such party and which arise out of or result from:
(a) any breach of any representation, warranty, covenant or
agreement of IFG contained in this Agreement or in any other Transferee
Document;
(b) any Liability assumed by IFG or Crown pursuant to Section
3.1;
(c) the operation or conduct of the LHO Division, the SBA
Division or Trust Co. or the ownership of the assets relating thereto and the
other Contributed Assets or any part thereof on, prior to or following the
Effective Time;
(d) any liability with respect to third party arising out of the
formation, syndication, capitalization, licensing, obtaining regulatory
approvals or funding of IFG or Crown, including, without limitation, any actual
or alleged misstatement or omission of material fact in connection with said
formation, syndication, capitalization, licensing, regulatory approval process
or funding of IFG or Crown, except with respect to (i) any Liability arising
from any Transaction Suit, (ii) any Liability with respect to any third party
arising out of any actual or alleged misstatement or omission of material fact
by the Bank or Imperial Bancorp in connection with the Form 10, including the
Information Statement set forth therein, and (iii) any Liability with respect to
any third party arising out of any actual or alleged misstatement or ommission
of material fact by the Bank or Imperial Bancorp in connection with the
formation, syndication, capitalization, licensing, obtaining regulatory
approvals or funding of Crown;
(e) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation,
reasonable legal fees and expenses, incurred in enforcing this indemnity.
12.3 Notice to Indemnifying Party. If any party (the "Indemnified
----------------------------
Party") receives notice of any claim or other commencement of any action or
proceeding by a third party with respect to which any other party (or parties)
(the "Indemnifying Party") is obligated to provide indemnification pursuant to
Sections 12.1 or 12.2, the Indemnified Party shall promptly give the
Indemnifying Party, written notice thereof which notice shall specify, if known,
the amount or an estimate of the amount of the Liability arising therefrom;
provided that no delay on the part of the Indemnified Party in giving such
notice shall relieve the Indemnifying Party of any indemnification obligation
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such delay.
12.4 Defense by Indemnifying Party. In connection with any claim
-----------------------------
giving rise to indemnity hereunder resulting from or arising out of any claim or
legal proceeding by a person who is not a party to this Agreement, the
Indemnifying Party at its sole cost and expense may, upon written notice to the
Indemnified Party delivered within 30 days after receipt by the
-15-
Indemnifying Party of a notice for a claim for indemnification, assume the
defense of any such claim or legal proceeding using counsel of its choice
(subject to the approval of the Indemnified Party, which approval may not be
unreasonably withheld). The Indemnified Party shall be entitled to participate
in (but not control) the defense of any such action, with its counsel and at its
own expense; provided, however, that if there exists a material conflict of
interest between the Indemnifying Party (or any constituent party thereof) and
the Indemnified Party, the Indemnified Party (or any constituent party thereof)
shall have the right to engage separate counsel, the reasonable costs and
expenses of which shall be paid by the Indemnifying Party, but in no event shall
the Indemnifying Party be liable for the costs and expenses of more than one
such separate counsel (and one local counsel, as necessary). Notwithstanding the
foregoing, the Indemnifying Party shall not, without the prior written consent
of the Indemnified Party, (i) settle or compromise any such claim or litigation
or consent to the entry of any judgment which does not include as an
unconditional term thereof the delivery by the claimant or plaintiff to the
Indemnified Party of a written release from all liability in respect of such
claim or litigation or (ii) settle or compromise any claim or litigation in any
manner that would be reasonably likely to have a material adverse effect on the
Indemnified Party.
12.5 Defense by Indemnified Party. If the Indemnifying Party does not
----------------------------
assume the defense of any such claim or litigation resulting therefrom, the
Indemnified Party may defend against such claim or litigation, after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate, and the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense; provided, however, that the Indemnified Party may not
compromise or settle any such claim or litigation without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld. If the Indemnifying Party thereafter seeks to question the manner in
which the Indemnified Party defended such third-party claim, the Indemnifying
Party shall have the burden to prove by a preponderance of the evidence that the
Indemnified Party did not defend such third-party claim in a reasonably prudent
manner.
12.6 Indemnity for Insured Liabilities. Notwithstanding anything to
---------------------------------
the contrary set forth in this Agreement, no Liability, or part thereof, which
is covered by insurance shall be deemed assumed by IFG or subject to any
indemnity hereunder by IFG to the extent of applicable insurance coverage. It is
the express intention of the parties that no transaction contemplated by this
Agreement eliminate or reduce insurance coverage available to any party hereto
with respect to a Liability.
12.7 Internal Revenue Service Forms. Pursuant to the ''Alternative
------------------------------
Procedure" provided in Section 5 of Revenue Procedure 96-60, 1996-53, I.R.B. 24,
with respect to preparing, filing and furnishing the Internal Revenue Service
Forms X-0, X-0, 000 xxx X-0, (x) the Bank and IFG shall report, on a
''predecessor-successor" basis as set forth therein, (ii) the Bank shall be
relieved from furnishing Forms W-2 to the IFG Employees and (iii) IFG shall
assume the obligation of IFG to furnish such forms to the IFG Employees for the
full 1998 calendar year.
-16-
ARTICLE XIII
EXPENSES; PUBLICITY
13.1 Expenses of Transfer. Except as provided in the Tax Sharing
--------------------
Agreement, IFG, on the one hand, and the Bank and Imperial Bancorp, on the other
hand, shall share equally all expenses incurred by all parties hereto in
connection with the negotiation and preparation of this Agreement, the Bank
Documents and the Transferee Documents and the consummation and performance of
the transactions contemplated herein.
13.2 Publicity. No publicity release or announcement concerning this
---------
Agreement or the transactions contemplated herein shall be issued without
advance written approval of the form and substance thereof by all parties
hereto; provided, however, that such restrictions shall not apply to any
disclosure required by regulatory Authorities, applicable Law or the rules of
any securities exchange which may be applicable.
ARTICLE XIV
RESOLUTION OF DISPUTES BY REFERENCE
14.1 In General. Subject to Section 15.3, other than the appointment
----------
of a receiver, or the exercise of other provisional remedies (any and all of
which may be initiated pursuant to applicable law), each controversy, dispute or
claim between the parties arising out of or relating to this Agreement, which
controversy, dispute or claim is not settled in writing within thirty (30) days
after the "Claim Date" (defined as the date on which a party subject to the
Agreement gives written notice to all other parties that a controversy, dispute
or claim exists), will be settled by a reference proceeding in California in
accordance with the provisions of Section 638 et seq. of the California Code of
-- ---
Civil Procedure, or their successor section ("CCP" ), which shall constitute the
exclusive remedy for the settlement of any controversy, dispute or claim
concerning this Agreement, including whether such controversy, dispute or claim
is subject to the reference proceeding and except as set forth above, the
parties waive their rights to initiate any legal proceedings against each other
in any court or jurisdiction other than the Superior Court in the County where
the Real Property, if any, is located or Los Angeles County if none (the
"Court").
14.2 Referee; Procedural Matters. The referee shall be a retired
---------------------------
Judge of the Court selected by mutual agreement of the parties, and if they
cannot so agree within forty-five (45) days after the Claim Date, the referee
shall be promptly selected by the Presiding Judge of the Court (or his
representative). The referee shall be appointed to sit as a temporary judge,
with all of the powers for a temporary judge, as authorized by law, and upon
selection should take and subscribe to the oath of office as provided for in
Rule 244 of the California Rules of Court (or any subsequently enacted Rule).
Each party shall have one peremptory challenge pursuant to CCP (S) 170.6. The
referee shall (a) be requested to set the matter for hearing within sixty (60)
days after the Claim Date and (b) try any and all issues of law or fact and
report a statement of decision upon them, if possible, within ninety (90) days
of the Claim Date. Any decision rendered by the referee will be final, binding
and conclusive and judgment shall be entered pursuant to CCP (S)644
-17-
in any court in the State of California having jurisdiction. Any party may apply
for a reference proceeding at any time after thirty (30) days following notice
to any other party of the nature of the controversy, dispute or claim, by filing
a petition for a hearing and/or trial.
14.3 Discovery. All discovery permitted by this Agreement shall be
---------
completed no later than fifteen (15) days before the first hearing date
established by the referee. The referee may extend such period in the event of a
party's refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by
either party upon seven (7) days written notice, and request for production or
inspection of documents shall be responded to within ten (10) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and
binding upon the parties. Pending appointment of the referee as provided herein,
the Superior Court is empowered to issue temporary and/or provisional remedies,
as appropriate.
14.4 Conduct of Proceeding.
---------------------
(a) Except as expressly set forth in this Agreement, the
referee shall determine the manner in which the reference proceeding is
conducted including the time and place of all hearings, the order of
presentation of evidence, and all other questions that arise with respect to the
course of the reference proceeding. All proceedings and hearings conducted
before the referee, except for trial, shall be conducted without a court
reporter, except that when any party so requests, a court reporter will be used
at any hearing conducted before the referee. The party making such a request
shall have the obligation to arrange for and pay for the court reporter. The
costs of the court reporter at the trial shall be borne equally by the parties.
(b) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the State
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, to provide all
temporary and/or provisional remedies and to enter equitable orders that will be
binding upon the parties. The referee shall issue a single judgment at the close
of the reference proceeding which shall dispose of all of the claims of the
parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest or appeal from the final judgment or any appealable
order or appealable judgment entered by the referee. The parties hereto
expressly reserve the right to findings of fact, conclusions of law, a written
statement of decision, and the right to move for a new trial or a difference
judgment, which new trial, if granted, is also to be a reference proceeding
under this provision.
14.5 Repeal of Legislation. In the event that the enabling
---------------------
legislation which provides for appointment of a referee is repealed (and no
successor statute is enacted), any dispute between the parties that would
otherwise be determined by the reference procedure herein described will be
resolved and determined by arbitration. The arbitration will be conducted by a
retired judge of the Court, in accordance with the California Arbitration Act,
(S)1294.2 of the CCP as amended from time to time. The limitations with respect
to discovery as set forth hereinabove shall apply to any such arbitration
proceeding.
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ARTICLE XV
MISCELLANEOUS
15.1 Notices. All notices, requests and other communications
-------
hereunder shall be in writing and shall be delivered by courier or other means
of personal service (including by means of a nationally recognized courier
service or a professional messenger service), or sent by telecopy or mailed
first class, postage prepaid, by certified mail, return receipt requested, in
all cases, addressed to:
IFG:
Imperial Financial Group, Inc.
0000 Xxxxxxx Xxxx Xxxx 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
With copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxx Xxxx
Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
and
Allen, Matkins, Xxxx, Xxxxxx & Xxxxxxx LLP
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Imperial Bancorp or the Bank:
Imperial Bancorp
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, General Counsel
With a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
-19-
All notices, requests and other communications shall be deemed given on the date
of actual receipt or delivery as evidenced by written receipt, acknowledgment or
other evidence of actual receipt or delivery to the address. In case of service
by telecopy, a copy of such notice shall be personally delivered or sent by
registered or certified mail, in the manner set forth above, within three
business days thereafter, Either party hereto may from time to time by notice in
writing served as set forth above designate a different address or a different
or additional person to which all such notices or communications thereafter are
to be given.
15.2 Further Assurances. Each of the parties shall use its reasonable
------------------
and diligent best efforts to proceed promptly with the transactions contemplated
herein, to fulfill the conditions precedent for such party's benefit or to cause
the same to be fulfilled and to execute such further documents and other papers
and perform such further acts as may be reasonably required or desirable to
carry out the provisions hereof and the transactions contemplated herein.
15.3 Attorneys' Fees. If either party shall bring an action against
---------------
the other by reason of any alleged breach of any covenant, provision or
condition hereof, the unsuccessful party shall pay to the prevailing party all
attorneys' fees and costs incurred by the prevailing party, in addition to any
other relief to which it may be entitled.
15.4 Modifications and Amendments; Waivers and Consents. At any time
--------------------------------------------------
prior to the Closing Date the parties may, by written agreement:
(a) amend this Agreement or extend the time for the performance
of any of the obligations or other acts of the other party hereto;
(b) waive any inaccuracies in the representations and
warranties made by the other party contained in this Agreement or any other
agreement or document delivered pursuant to this Agreement; and
(c) waive compliance with any of the covenants or agreements of
the other party contained in this Agreement. However, no such waiver shall
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits a waiver or consent by or
on behalf of any party hereto, such waiver or consent shall be given in writing.
15.5 Entire Agreement. This Agreement (including the exhibits hereto
----------------
and the portions of the Information Statement and Form 10 referred to by this
Agreement) and the agreements, documents and instruments to be executed and
delivered pursuant hereto or thereto (including the Bank Documents and the
Transferee Documents) are intended to embody the final, complete and exclusive
agreement among the parties with respect to the transfer of the Contributed
Assets and related transactions; are intended to supersede all prior agreements,
understandings and representations written or oral, with respect thereto; and
may not be contradicted by evidence of any such prior or contemporaneous
agreement, understanding or representation, whether written or oral.
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15.6 Governing Law and Venue. This Agreement is to be governed by and
-----------------------
construed in accordance with the laws of the state of California applicable to
contracts made and to be performed wholly within such State, and without regard
to the conflicts of laws principles thereof. Each party hereby agrees that any
such court shall have in personam jurisdiction over it, consents to service of
process in any manner prescribed in Section 15.1 or in any other manner
authorized by California law, and agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner specified by law.
15.7 Binding Effect. This Agreement and the rights, covenants,
---------------
conditions and obligations of the respective parties hereto and any instrument
or agreement executed pursuant hereto shall be binding upon the parties and
their respective successors, assigns and legal representatives.
15.8 Counterparts. This Agreement may be executed simultaneously in
------------
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. In making proof of
this Agreement it shall not be necessary to produce or account for more than one
counterpart.
15.9 Section Headings. The section headings of this Agreement are for
----------------
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
15.10 Gender; Tense, Etc. Where the context or construction requires,
------------------
all words applied in the plural shall be deemed to have been used in the
singular, and vice versa; the masculine shall include the feminine and neuter,
and vice versa; and the present tense shall include the past and future tense,
and vice versa.
15.11 Severability. In the event that any provision or any part of
------------
any provision of this Agreement shall be void or unenforceable for any reason
whatsoever, then such provision shall be stricken and of no force and effect.
However, the remaining provisions of this Agreement shall continue in full force
and effect, and to the extent required, shall be modified to preserve their
validity.
15.12 No Third-Party Rights. Nothing in this Agreement, whether
---------------------
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons or entities other than the parties
hereto and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons or entities to any party to this Agreement, nor shall any
provision give any third persons or entities any right of subrogation or action
against any party to this Agreement.
15.13 Ambiguities. The parties acknowledge that each party and its
-----------
counsel has materially participated in the drafting of this Agreement and
consequently the rule of contract interpretation that ambiguities, if any, in
the writing be construed against the drafter, shall not apply.
-21-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
IFG
Imperial Financial Group, Inc.,
a Delaware corporation
By:___________________________
Name:
Title:
CROWN
Crown American Bank,
a California industrial loan corporation
By:___________________________
Name:
Title:
THE BANK
Imperial Bank,
a California banking corporation
By:___________________________
Name:
Title:
IMPERIAL BANCORP
Imperial Bancorp,
a California corporation
By:___________________________
Name:
Title:
-22-
EXHIBIT A
---------
IFG EMPLOYEES
EXHIBIT B
---------
LHO DIVISION CONTRACTS
EXHIBIT C
---------
SBA DIVISION CONTRACTS AND MATERIAL ASSETS
EXHIBIT D
---------
LOANS NOT ASSUMED
EXHIBIT E
---------
LITIGATION
