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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
REPUBLIC BANCSHARES, INC.
AND
EQUITY HOLDINGS LIMITED
DATED AS OF DECEMBER 19, 1996
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of December 19, 1996, by and between Republic Bancshares, Inc.
("Republic"), a Florida corporation; and Equity Holdings Limited, ("EHL"), an
Illinois Limited Partnership, the sole shareholder of Firstate Financial, F.A.
("Firstate"), a federally chartered savings association.
PREAMBLE
EHL is the record and beneficial owner of all of the issued and
outstanding shares of Firstate Common Stock (the "Shares"). EHL desires to sell
all of the Shares to Republic, and Republic desires to purchase the Shares from
EHL, upon the terms and subject to the conditions set forth in this Agreement.
The transactions described in this Agreement are subject to the receipt of
certain regulatory approvals and the satisfaction of certain other conditions
described in this Agreement.
Certain terms used in this Agreement are defined in Section 8.1 of this
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, EHL shall sell to Republic, and Republic shall
purchase from EHL, the Shares at the Closing (the "Stock Purchase"). The
purchase price for the Shares shall be $5,501,000 (the "Purchase Price"), and
shall be paid as provided in Section 1.2.
1.2 TIME AND PLACE OF CLOSING.
(a) The closing of the transactions contemplated hereby
(the "Closing") will take place at 9:00 A.M. on the date that the Closing Date
occurs, or at such other time as the Parties, acting through their authorized
officers, may mutually agree. The Closing shall be held at such location as may
be mutually agreed upon by the Parties. Subject to the terms and conditions
hereof, unless otherwise mutually agreed upon in writing by the authorized
officers of each Party, the Parties shall use their reasonable efforts to cause
the Closing to occur on the first business day following the effective date
(including expiration of any applicable waiting period) of the last required
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Consent of any Regulatory Authority having authority over and approving or
exempting the Stock Purchase (the "Closing Date").
(b) At the Closing:
(i) Republic shall deliver to EHL immediately
available funds by wire transfer to an account specified by EHL in an
amount equal to the aggregate Purchase Price for the Shares, and
(ii) EHL shall deliver to Republic (x)
certificates representing all the Shares duly registered in the name of
Republic (or such other Person as Republic may designate to Seller not
less than five business days prior to the Closing), free and clear of
any Liens and (y) resignations of any of the directors of Firstate from
their respective positions with Firstate or any of its Subsidiaries as
requested by Republic.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF EHL
EHL hereby represents and warrants to Republic as follows:
2.1 ORGANIZATION, STANDING, AND POWER.
(a) Firstate is a federally chartered savings and loan
association with the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its material Assets. The minute
books and other organizational documents for Firstate have been made available
to Republic for its review and, except as disclosed in Section 2.1 of the EHL
Disclosure Memorandum, are true and complete in all material respects as in
effect as of the date of this Agreement and accurately reflect in all material
respects all amendments thereto and all proceedings of the Board of Directors
and shareholders thereof for the past five years
(b) EHL is a limited partnership duly organized and
validly existing under the laws of the State of Illinois.
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2.2 AUTHORITY OF EHL; NO BREACH BY AGREEMENT.
(a) Subject to the receipt of Consents required
from Regulatory Authorities, EHL has the right, power, authority, and capacity
to execute and deliver this Agreement and the EHL Closing Documents and to
perform its obligations under this Agreement and the EHL Closing Documents. This
Agreement represents a legal, valid, and binding obligation of EHL, enforceable
against EHL in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding may
be brought). Upon the execution and delivery by EHL of the EHL Closing
Documents, the EHL Closing Documents will constitute the legal, valid, and
binding obligations of EHL, enforceable against EHL in accordance with their
respective terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by EHL, nor the consummation by EHL of the transactions contemplated
hereby, nor compliance by EHL with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of EHL's Certificate of
Limited Partnership or Firstate's Articles of Incorporation or Bylaws or the
certificate or articles of incorporation of any Firstate Entity or the governing
instruments of Firstate or EHL, or (ii) except as disclosed in Section 2.2 of
the EHL Disclosure Memorandum, constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of either EHL or any Firstate entity under, any Contract or Permit of EHL,
where such Lien, or any failure to obtain such Consent, is reasonably likely to
have, individually or in the aggregate, an EHL Material Adverse Effect or a
Firstate Material Adverse Effect, or, (iii) subject to receipt of the requisite
Consents referred to in Section 6.1(b), violate any Law or Order applicable to
EHL, Firstate or any Firstate Entity or any of their respective material Assets.
(c) Other than Consents required from Regulatory
Authorities, and other than notices to or filings with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation with respect to any employee
benefit plans, and other than Consents, filings, or notifications which, if not
obtained
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or made, are not reasonably likely to have, individually or in the aggregate, an
EHL Material Adverse Effect, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by EHL of the
transactions contemplated in this Agreement.
2.3 CAPITAL STOCK.
(a) The authorized capital stock of Firstate consists of
400,000 shares of Firstate Common Stock, of which 200,000 shares are issued and
outstanding as of the date of this Agreement. All of the issued and outstanding
shares of capital stock of Firstate are duly and validly issued and outstanding
and are fully paid and nonassessable. None of the outstanding shares of capital
stock of Firstate has been issued in violation of any preemptive rights of the
current or past shareholders of Firstate.
(b) EHL owns all right, title and interest (legal and
beneficial) in and to all of the issued and outstanding shares of Firstate's
capital stock, free and clear of any restrictions on transfer or Liens. Except
as specifically contemplated by, provided in or disclosed pursuant to this
Agreement, no Person has any Contract or any right, claim, commitment or
privilege (whether preemptive or contractual) capable of becoming a Contract for
the purchase from the EHL of any of the Shares, or any Contract or Shareholder
Right for the purchase, subscription or issuance of any securities of Firstate.
EHL is not a party to any voting trust, proxy or other agreement or
understanding with respect to the voting of the Shares.
2.4 FIRSTATE SUBSIDIARIES. EHL has disclosed in Section 2.4 of the
EHL Disclosure Memorandum all of the significant Firstate Subsidiaries that are
corporations (identifying its jurisdiction of incorporation, each jurisdiction
in which it is qualified and/or licensed to transact business, and the number of
shares owned and percentage ownership interest represented by such share
ownership) and all of the Firstate Subsidiaries that are general or limited
partnerships, limited liability companies, or other non-corporate entities
(identifying the Law under which such entity is organized, each jurisdiction in
which it is qualified and/or licensed to transact business, and the amount and
nature of the ownership interest therein). Except as disclosed in Section 2.4 of
the EHL Disclosure Memorandum, Firstate owns all of the issued and outstanding
shares of capital stock (or other equity interests) of each Firstate Subsidiary.
No capital stock (or other equity interest) of any Firstate Subsidiary is or may
become required to be issued (other than to another Firstate Entity) by reason
of any Shareholder's Rights, and there are no Contracts by which any Firstate
Subsidiary is bound to issue (other than to another Firstate Entity) additional
shares of its capital stock (or other
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equity interests) or Shareholder's Rights or by which any Firstate Entity is or
may be bound to transfer any shares of the capital stock (or other equity
interests) of any Firstate Subsidiary (other than to another Firstate Entity).
There are no Contracts relating to the rights of any Firstate Entity to vote or
to dispose of any shares of the capital stock (or other equity interests) of any
Firstate Subsidiary. All of the shares of capital stock (or other equity
interests) of each Firstate Subsidiary held by a Firstate Entity are fully paid
and nonassessable under the applicable corporation Law of the jurisdiction in
which such Subsidiary is incorporated or organized and are owned by the Firstate
Entity free and clear of any restriction on transfer or Lien. Except as
disclosed in Section 2.4 of the EHL Disclosure Memorandum, each such Subsidiary
is duly organized, validly existing, and (as to corporations) in good standing
under the Laws of the jurisdiction in which it is incorporated or organized, and
has the corporate power and authority necessary for it to own, lease, and
operate its Assets and to carry on its business as now conducted. Each Firstate
Subsidiary is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Firstate Material
Adverse Effect. The minute book and other organizational documents for each
Firstate Subsidiary have been made available to Republic for its review, and,
except as disclosed in Section 2.4 of the EHL Disclosure Memorandum, are true
and complete in all material respects as in effect as of the date of this
Agreement and accurately reflect in all material respects all amendments thereto
and all proceedings of the Board of Directors and shareholders thereof for the
past five years.
2.5 FINANCIAL STATEMENTS. Each of the Firstate Financial
Statements (including, in each case, any related notes) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements),
and fairly presented in all material respects the consolidated financial
position of Firstate and its Subsidiaries as at the respective dates and the
consolidated results of operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount or effect.
2.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Firstate Entity has any
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Firstate Material Adverse Effect, except Liabilities which are
accrued or reserved against in the consolidated balance sheets of Firstate as of
December 31,
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1995, and September 30, 1996, included in the Firstate Financial Statements
delivered prior to the date of this Agreement or reflected in the notes thereto.
To the knowledge of EHL, no Firstate Entity has incurred or paid any Liability
since September 30, 1996, except for such Liabilities incurred or paid (i) in
the ordinary course of business consistent with past business practice and which
are not reasonably likely to have, individually or in the aggregate, a Firstate
Material Adverse Effect or (ii) in connection with the transactions contemplated
by this Agreement.
2.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1995,
except as disclosed in the Firstate Financial Statements delivered prior to the
date of this Agreement or as disclosed in Section 2.7 of the EHL Disclosure
Memorandum, (i) there have been no events, changes, transactions, losses or
other occurrences which have had, or are reasonably likely to have, individually
or in the aggregate, a Firstate Material Adverse Effect, and (ii) the Firstate
Entities have not taken any action, or failed to take any action, prior to the
date of this Agreement, which action or failure, if taken after the date of this
Agreement, would represent or result in a material breach or violation of any of
the covenants and agreements of Firstate provided in Article 4.
2.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf
of any of the Firstate Entities have been timely filed for periods ended on or
before December 31, 1995, and on or before the date of the most recent fiscal
year end immediately preceding the Closing Date, except to the extent that all
such failures to file, taken together, are not reasonably likely to have a
Firstate Material Adverse Effect, and all Tax Returns filed are complete and
accurate in all material respects. All Taxes shown on filed Tax Returns have
been paid. As of the date of this Agreement, there is no audit examination,
deficiency, or refund Litigation with respect to any Taxes that is reasonably
likely to result in a determination that would have, individually or in the
aggregate, a Firstate Material Adverse Effect, except as reserved against in the
Firstate Financial Statements delivered prior to the date of this Agreement or
as disclosed in Section 2.8 of the EHL Disclosure Memorandum. All Taxes and
other Liabilities due with respect to completed and settled Tax examinations or
concluded refund Litigation have been paid. There are no Liens with respect to
Taxes upon any of the Assets of the Firstate Entities, except for any such Liens
which are not reasonably likely to have a Firstate Material Adverse Effect.
(b) None of the Firstate Entities has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal
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Revenue Service or other applicable taxing authorities) that is currently in
effect.
(c) The provision for any Taxes due or to become due for
any of the Firstate Entities for the period or periods through and including the
date of the respective Firstate Financial Statements that has been made and is
reflected on such Firstate Financial Statements is sufficient to cover all such
Taxes.
(d) Deferred Taxes of the Firstate Entities have been
provided for in accordance with GAAP.
(e) None of the Firstate Entities is a party to any Tax
allocation or sharing agreement and none of the Firstate Entities has been a
member of an affiliated group filing a consolidated federal income Tax Return
(other than a group the common parent of which was Firstate) has any Liability
for Taxes of any Person (other than Firstate and its Subsidiaries) under
Treasury Regulation Section 1.1502-6 (or any similar provision of state, local
or foreign Law) as a transferee or successor or by Contract or otherwise.
(f) Each of the Firstate Entities is in compliance with,
and its records contain all information and documents (including properly
completed IRS Forms W-9) necessary to comply with, all applicable information
reporting and Tax withholding requirements under federal, state, and local Tax
Laws, and such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for such
instances of noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a Firstate Material Adverse Effect.
(g) Except as disclosed in Section 2.8 of the EHL
Disclosure Memorandum, none of the Firstate Entities has made any payments, is
obligated to make any payments, or is a party to any Contract that could
obligate it to make any payments that would be disallowed as a deduction under
Section 280G or 162(m) of the Internal Revenue Code.
(h) There has not been an ownership change, as defined in
Internal Revenue Code Section 382(g), of the Firstate Entities that occurred
during or after any Taxable Period in which the Firstate Entities incurred a net
operating loss that carries over to any Taxable Period ending after December 31,
1995.
(i) No Firstate Entity has or has had in any foreign
country a permanent establishment, as defined in any applicable tax treaty or
convention between the United States and such foreign country.
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(j) After the date hereof, no election with respect to
Taxes will be made which, if either made or failed to be made as appropriate
could have a Firstate Material Adverse Effect, without the prior written consent
of Republic, which consent will not be unreasonably withheld.
(k) Firstate has made available to Republic for
inspection correct and complete copies of all federal income Tax Returns,
examination reports and statements of deficiencies assessed against or agreed to
by Firstate since January 1, 1993.
(l) None of the Firstate Entities has filed a consent
under Section 341(f) of the Internal Revenue Code concerning collapsible
corporations.
(m) On request of Republic, at or prior to Closing, EHL
will provide a certificate of non-foreign status for the purposes of Section
1445 of the Internal Revenue Code.
2.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. In the opinion of
management of Firstate, the allowance for possible loan or credit losses (the
"Allowance") shown on the consolidated balance sheets of Firstate included in
the most recent Firstate Financial Statements dated prior to the date of this
Agreement was, and the Allowance shown on the consolidated balance sheets of
Firstate included in the Firstate Financial Statements as of dates subsequent to
the execution of this Agreement will be, as of the dates thereof, adequate
(within the meaning of GAAP) to provide for all known or reasonably anticipated
losses relating to or inherent in the loan and lease portfolios (including
accrued interest receivables) of the Firstate Entities and other extensions of
credit (including letters of credit and commitments to make loans or extend
credit) by the Firstate Entities as of the dates thereof, except where the
failure of such Allowance to be so adequate is not reasonably likely to have a
Firstate Material Adverse Effect.
2.10 ASSETS.
(a) Except as disclosed in Section 2.10 of the EHL
Disclosure Memorandum or as disclosed or reserved against in the Firstate
Financial Statements delivered prior to the date of this Agreement, the Firstate
Entities have good and marketable title, free and clear of all Liens, to all of
their respective Assets which are material to Firstate's business on a
consolidated basis, except for any such Liens or other defects of title which
are not reasonably likely to have a Firstate Material Adverse Effect.
(b) All Assets which are material to Firstate's business
on a consolidated basis, held under leases or subleases by any of the Firstate
Entities, are held under valid Contracts enforceable in accordance with their
respective terms (except as
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enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceedings may be brought), and each such
Contract is in full force and effect.
(e) The Firstate Entities currently maintain insurance as
disclosed in Section 2.10(e) of the EHL Disclosure Memorandum, and to the
Knowledge of EHL, such insurance is in full force and effect. None of the
Firstate Entities has received notice from any insurance carrier that (i) any
policy of insurance will be canceled or that coverage thereunder will be reduced
or eliminated, or (ii) premium costs with respect to such policies of insurance
will be substantially increased. There are presently no claims for amounts
exceeding in any individual case $100,000 pending under such policies of
insurance and no notices of claims in excess of such amounts have been given by
any Firstate Entity under such policies.
2.11 INTELLECTUAL PROPERTY. Each Firstate Entity owns or has a
right to use all of the Intellectual Property used by such Firstate Entity in
the course of its business, except to the extent that failure to own or have
such a right is not reasonably likely to have a Firstate Material Adverse
Effect. No proceedings have been instituted, or are pending or to the Knowledge
of EHL threatened, which challenge the rights of any Firstate Entity with
respect to Intellectual Property used by such Firstate Entity in the course of
its business, nor has any person claimed or alleged any rights to such
Intellectual Property. To the Knowledge of EHL, the conduct of the business of
the Firstate Entities does not infringe any Intellectual Property of any other
person.
2.12 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of EHL, and except as disclosed in
Section 2.12 of the EHL Disclosure Memorandum, each Firstate Entity, its
Participation Facilities, and its Operating Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the aggregate, a Firstate Material
Adverse Effect.
(b) There is no Litigation pending or, to the Knowledge
of EHL, threatened before any court, governmental agency, or authority or other
forum in which any Firstate Entity or any of its Operating Properties or
Participation Facilities (or Firstate in respect of such Operating Property or
Participation Facility) has been or, with respect to threatened Litigation, may
be named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any
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Environmental Law or (ii) relating to the release, discharge, spillage, or
disposal into the environment of any Hazardous Material, whether or not
occurring at, on, under, adjacent to, or affecting (or potentially affecting) a
site owned, leased, or operated by any Firstate Entity or any of its Operating
Properties or Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in the
aggregate, a Firstate Material Adverse Effect, nor is there any reasonable basis
for any Litigation of a type described in this sentence, except such as is not
reasonably likely to have, individually or in the aggregate, a Firstate Material
Adverse Effect.
(c) During the period of (i) any Firstate Entity's
ownership or operation of any of their respective current properties, (ii) any
Firstate Entity's participation in the management of any Participation Facility,
or (iii) any Firstate Entity's holding of a security interest in a Operating
Property, to the Knowledge of EHL there have been no releases, discharges,
spillages, or disposals of Hazardous Material in, on, under, adjacent to, or
affecting (or potentially affecting) such properties, except such as are not
reasonably likely to have, individually or in the aggregate, a Firstate Material
Adverse Effect. Prior to the period of (i) any Firstate Entity's ownership or
operation of any of their respective current properties, (ii) any Firstate
Entity's participation in the management of any Participation Facility, or (iii)
any Firstate Entity's holding of a security interest in a Operating Property, to
the Knowledge of EHL, there were no releases, discharges, spillages, or
disposals of Hazardous Material in, on, under, or affecting any such property,
Participation Facility or Operating Property, except such as are not reasonably
likely to have, individually or in the aggregate, a Firstate Material Adverse
Effect.
2.13 COMPLIANCE WITH LAWS. Firstate and each Firstate Entity
has in effect all Permits necessary for it to own, lease, or operate its
material Assets and to carry on its business as now conducted, except for those
Permits the absence of which are not reasonably likely to have, individually or
in the aggregate, a Firstate Material Adverse Effect, and there has occurred no
Default under any such Permit. Except as disclosed in Section 2.13 of the EHL
Disclosure Memorandum, none of the Firstate Entities:
(a) is in Default under any of the provisions of its Charter,
Articles of Incorporation or Bylaws (or other governing instruments);
(b) is in Default under any Laws, Orders, or Permits
applicable to its business or employees conducting its business; or
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(c) since January 1, 1993, and except as disclosed in Section
2.13 of the EHL Disclosure Memorandum, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i)
asserting that any Firstate Entity is not in compliance with any of the
Laws or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Firstate Material Adverse
Effect, (ii) threatening to revoke any Permits, the revocation of which
is reasonably likely to have, individually or in the aggregate, a
Firstate Material Adverse Effect, or (iii) requiring any Firstate
Entity to enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business or in any manner
relates to its capital adequacy, its credit or reserve policies, its
management, or the payment of dividends.
Copies of all material reports, correspondence, notices and other documents
relating to any inspection, audit, monitoring or other form of review or
enforcement action by a Regulatory Authority have been made available to
Republic.
2.14 LABOR RELATIONS. No Firstate Entity is the subject of any
Litigation, and, to the Knowledge of EHL, there is no Litigation threatened,
before any court, governmental agency or authority or other forum, asserting
that it or any other Firstate Entity has committed an unfair labor practice
(within the meaning of the National Labor Relations Act or comparable state law)
or seeking to compel it or any other Firstate Entity to bargain with any labor
organization as to wages or conditions of employment, nor is any Firstate Entity
party to any collective bargaining agreement, nor is there any strike or other
labor dispute involving any Firstate Entity, pending or, to the Knowledge of
EHL, threatened, nor to the Knowledge of EHL, is there any activity involving
any Firstate Entity's employees seeking to certify a collective bargaining unit
or engaging in any other organization activity.
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2.15 EMPLOYEE BENEFIT PLANS.
(a) EHL has disclosed in Section 2.15 of the EHL Disclosure
Memorandum, and has delivered or made available to Republic prior to the
execution of this Agreement copies in each case of, all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plan, all other written
employee programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee benefit
plans or fringe benefit plans, including "employee benefit plans" as that term
is defined in Section 3(3) of ERISA, currently sponsored by any Firstate Entity
(collectively, the "Firstate Benefit Plans"). Any Firstate Benefit Plan which is
an "employee pension benefit plan," as that term is defined in Section 3(2) of
ERISA, is referred to herein as a "Firstate ERISA Plan."
(b) As to each Firstate Benefit Plan, to the knowledge of EHL,
Firstate has complied with the applicable terms of ERISA and the Internal
Revenue Code and any other applicable laws, the breach or violation of which are
reasonably likely to have, individually or in the aggregate, a Firstate Material
Adverse Effect. Each Firstate ERISA Plan which is intended to be qualified under
Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service.
(c) No Firstate Pension Plan is a defined benefit plan within the
meaning of Section 414(g) of the Code.
(d) No Firstate Pension Plan is a multiemployer plan within the
meaning of Section 3(37) of ERISA.
(e) Except as disclosed in Section 2.15 of the EHL Disclosure
Memorandum, no Firstate Entity maintains a Firstate Benefit Plan providing
welfare benefits (as defined in Section 3(1) of ERISA) to Employees after
retirement or after separation from service except to the extent required under
Part 6 of Title I of ERISA or Code Section 4980B.
2.16 MATERIAL CONTRACTS. Except as disclosed in Section 2.16 of the
EHL Disclosure Memorandum or otherwise reflected in the Firstate Financial
Statements, none of the Firstate Entities, nor any of their respective Assets,
businesses, or operations, is a party to, or is bound or affected by, or
receives benefits under, (i) any employment, severance, termination, consulting,
or retirement Contract providing for aggregate payments to any Person in any
calendar year in excess of $100,000 , (ii) any Contract relating to the
borrowing of money by any Firstate Entity or the guarantee by any Firstate
Entity of any such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase
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agreements, and Federal Home Loan Bank advances of depository institution
Subsidiaries, trade payables and Contracts relating to borrowings or guarantees
made in the ordinary course of business), (iii) any Contract which prohibits or
restricts any Firstate Entity from engaging in any business activities in any
geographic area, line of business or otherwise in competition with any other
Person, (iv) any Contract between or among Firstate Entities, (v) any Contract
involving Intellectual Property (other than Contracts entered into in the
ordinary course with customers and "shrink-wrap" software licenses), (vi) any
Contract relating to the provision of data processing, network communication, or
other technical services to or by any Firstate Entity, other than in the
ordinary course of business, copies of which will be made available to Republic
upon request, (vii) any Contract relating to the purchase or sale of any goods
or services (other than Contracts entered into in the ordinary course of
business and involving payments under any individual Contract not in excess of
$100,000 in any calendar year), (viii) any exchange-traded or over-the-counter
swap, forward, future, option, cap, floor, or collar financial Contract, or any
other interest rate or foreign currency protection Contract not included on its
balance sheet which is a financial derivative Contract, and (ix) any other
Contract or amendment thereto that would be required to be filed as an exhibit
to a Form 10-K filed (were such Form 10-K required to be filed) by Firstate with
the SEC or other relevant Regulatory Authority as of the date of this Agreement
(together with all Contracts referred to in Sections 2.10 and 2.15(a), the
"Firstate Contracts"). With respect to each Firstate Contract and except as
disclosed in Section 2.16 of the EHL Disclosure Memorandum, or except to the
extent that such matter would not result in a Firstate Material Adverse Effect:
(i) the Contract is in full force and effect; (ii) no Firstate Entity is in
Default thereunder; (iii) no Firstate Entity has repudiated or waived any
material provision of any such Contract; and (iv) no other party to any such
Contract is, to the Knowledge of Firstate, in Default in any respect, or has
repudiated or waived any material provision thereunder. All of the indebtedness
of any Firstate Entity for money borrowed is prepayable at any time by such
Firstate Entity without penalty or premium.
2.17 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of EHL, threatened (or unasserted but considered
probable of assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against any Firstate Entity, or against
any director, employee or employee benefit plan of any Firstate Entity, or
against any Asset, interest, or right of any of them, that is reasonably likely
to have, individually or in
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the aggregate, a Firstate Material Adverse Effect, nor are there any Orders of
any Regulatory Authorities, other governmental authorities, or arbitrators
outstanding against any Firstate Entity, that are reasonably likely to have,
individually or in the aggregate, a Firstate Material Adverse Effect, except as
disclosed in Section 2.17 of the EHL Disclosure Memorandum.
2.18 REPORTS. Since January 1, 1993, or the date of organization if
later, each Firstate Entity has timely filed all reports and statements,
together with any amendments required to be made with respect thereto, that it
was required to file with Regulatory Authorities. As of their respective dates,
each of such reports and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material respects with all
applicable Laws.
2.19 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by EHL or any Firstate
Entity or any Affiliate thereof to Republic pursuant to this Agreement or any
other document, agreement or instrument referred to herein contains or will
contain any untrue statement of material fact or will omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. All documents that EHL or any
Firstate Entity or any Affiliate thereof is responsible for filing with any
Regulatory Authority in connection with the transactions contemplated hereby
will comply as to form in all material respects with the provisions of
applicable Law.
2.20 REGULATORY MATTERS. No Firstate Entity nor EHL nor any
Affiliate thereof has taken or agreed to take any action or has any Knowledge of
any fact or circumstance that is reasonably likely to materially impede or delay
receipt of any Consents of Regulatory Authorities referred to in Section 6.1(b),
or which would prohibit EHL from consummating the transactions contemplated by
this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF REPUBLIC
Republic hereby represents and warrants to EHL as follows:
3.1 ORGANIZATION, STANDING, AND POWER. Republic is a corporation
duly organized, validly existing, and in good standing under the Laws of the
State of Florida, and has the corporate power and authority to carry on its
business as now conducted and to own, lease and operate its material Assets.
Republic is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Republic Material
Adverse Effect.
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3.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Republic has the corporate power and authority
necessary to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein, including the Stock Purchase, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Republic. This Agreement represents a legal, valid, and binding obligation of
Republic, enforceable against Republic in accordance with its terms (except in
all cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by Republic, nor the consummation by Republic of the transactions contemplated
hereby, nor compliance by Republic with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of Republic's certificate
of incorporation or bylaws, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Asset of any Republic Entity under, any Contract or Permit of any Republic
Entity, or, (iii) subject to receipt of the requisite Consents referred to in
Section 6.1(b), constitute or result in a Default under, or require any Consent
pursuant to, any Law or Order applicable to any Republic Entity or any of their
respective material Assets (including any Republic Entity or EHL or any Firstate
Entity becoming subject to or liable for the payment of any Tax or any of the
Assets owned by any Republic Entity or any Firstate Entity being reassessed or
revalued by any Taxing authority).
(c) Other than Consents required from Regulatory
Authorities, and other than notices to or filings with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation with respect to any employee
benefit plans, and other than Consents, filings, or notifications which, if not
obtained or made, are not reasonably likely to have, individually or in the
aggregate, a Republic Material Adverse Effect, no notice to, filing with, or
Consent of, any public body or authority is necessary for the consummation by
Republic of the Stock Purchase and the other transactions contemplated in this
Agreement.
3.3 COMPLIANCE WITH LAWS. Republic is duly registered as a bank
holding company under the BHC Act. Each Republic Entity has in effect all
Permits necessary for it to own, lease or operate its material Assets and to
carry on its business as
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now conducted, except for those Permits the absence of which are not reasonably
likely to have, individually or in the aggregate, a Republic Material Adverse
Effect, and there has occurred no Default under any such Permit. None of the
Republic Entities:
(a) is in Default under its Articles of Incorporation or
Bylaws (or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits applicable
to its business or employees conducting its business; or
(c) since January 1, 1993, has received any notification or
communication from any agency or department of federal, state, or local
government or any Regulatory Authority or the staff thereof (i)
asserting that any Republic Entity is not in compliance with any of the
Laws or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Republic Material Adverse
Effect, (ii) threatening to revoke any Permits, the revocation of which
is reasonably likely to have, individually or in the aggregate, a
Republic Material Adverse Effect, or (iii) requiring any Republic
Entity to enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit or reserve policies,
its management, or the payment of dividends; or
(d) to the extent that one or more of the Republic Entities is
an insured financial institution, each such Entity has at least a
"satisfactory" rating on its consumer compliance and Community
Reinvestment Act examinations.
3.4 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of Republic, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against any Republic Entity,
or against any director, employee or employee benefit plan of any Republic
Entity, or against any Asset, interest, or right of any of them, that is
reasonably likely to have, individually or in the aggregate, a Republic Material
Adverse Effect, nor are there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any Republic
Entity, that are reasonably likely to have, individually or in the aggregate, a
Republic Material Adverse Effect.
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3.5 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by any Republic Entity
or any Affiliate thereof to Firstate pursuant to this Agreement or any other
document, agreement or instrument referred to herein contains or will contain
any untrue statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. All documents that any Republic Entity or
any Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
3.6 REGULATORY MATTERS. No Republic Entity or any Affiliate
thereof has taken or agreed to take any action or has any Knowledge of any fact
or circumstance that is reasonably likely to materially impede or delay receipt
of any Consents of Regulatory Authorities referred to in Section 6.1(b), or
which would prohibit Republic from consummating the transactions contemplated by
this Agreement.
ARTICLE 4
CONDUCT OF BUSINESS PENDING CONSUMMATION
4.1 AFFIRMATIVE COVENANTS WITH RESPECT TO FIRSTATE. From the date
of this Agreement until the earlier of the Closing Date or the termination of
this Agreement, unless the prior written consent of Republic shall have been
obtained, and except as otherwise expressly contemplated herein, EHL shall use
reasonable efforts to cause Firstate and each of its Subsidiaries to (a) operate
its business only in the usual, regular, and ordinary course, (b) preserve
intact its business organization and Assets and maintain its rights and
franchises, except for such changes as might occur in the ordinary course of
business consistent with past practices, and (c) take no action which would (i)
materially adversely affect the ability of either Party to obtain Consents
required for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last sentences of
Section 6.1(b) of 6.1(c), or (ii) materially adversely affect the ability of
either Party to perform its covenants and agreements under this Agreement.
4.2 NEGATIVE COVENANTS WITH RESPECT TO FIRSTATE. From the date of
this Agreement until the earlier of the Closing Date or the termination of this
Agreement, unless the prior written consent of Republic shall have been
obtained, and except as otherwise expressly contemplated herein, EHL covenants
and agrees that it will not permit Firstate or any of its Subsidiaries to do or
agree to do, any of the following:
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(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of any Firstate Entity, except as may be required
by Law, or
(b) incur any additional debt obligation or other obligation
for borrowed money (other than indebtedness of a Firstate Entity to
another Firstate Entity) except in the ordinary course of the business
of Firstate consistent with past practices (which shall include, for
Firstate, creation of deposit liabilities, purchases of federal funds,
advances from the Federal Reserve Bank or Federal Home Loan Bank, entry
into repurchase agreements fully secured by U.S. government or agency
securities and similar activities), or except as reasonably necessary
(even if outside the ordinary course of business) in response to
extraordinary circumstances, or impose, or suffer the imposition, on
any Asset of any Firstate Entity of any Lien or permit any such Lien to
exist (other than in connection with deposits, repurchase agreements,
bankers acceptances, "treasury tax and loan" accounts established in
the ordinary course of business, the satisfaction of legal requirements
in the exercise of trust powers, and Liens in effect as of the date
hereof that are disclosed in Section 4.2(b) of the EHL Disclosure
Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares, or any securities convertible into
any shares, of the capital stock of any Firstate Entity, or declare or
pay any dividend or make any other distribution in respect of
Firstate's capital stock, except as specifically provided or permitted
herein; or
(d) except for this Agreement, issue, sell, pledge, encumber,
authorize the issuance of, enter into any Contract to issue, sell,
pledge, encumber, or authorize the issuance of, or otherwise permit to
become outstanding, any additional shares of Firstate Common Stock, or
any other capital stock of any Firstate Entity except in connection
with the sale of the real estate held or owned by a Firstate
Subsidiary, or any stock appreciation rights, or any option, warrant,
or other Stockholders' Right; or
(e) adjust, split, combine or reclassify any capital stock of
any Firstate Entity or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of Firstate
Common Stock, or sell, lease, mortgage or otherwise dispose of or
otherwise encumber (x) any shares of capital stock of any Firstate
Subsidiary (unless any such shares of stock are sold or otherwise
transferred to another Firstate Entity, or except with respect to a
Firstate Subsidiary, in connection with the sale of the real estate
held or owned by such Subsidiary) or
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(y) any Asset other than in the ordinary course of business for
reasonable and adequate consideration; or
(f) except in the ordinary course of business and consistent
with past practices, purchase any securities or make any material
investment, either by purchase of stock of securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person
other than a wholly owned Firstate Subsidiary, or otherwise acquire
direct or indirect control over any Person, other than in connection
with (i) foreclosures in the ordinary course of business, (ii)
acquisitions of control by Firstate in its fiduciary capacity, or (iii)
the creation of new wholly owned Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement, including
Subsidiaries formed to hold real estate or other assets received as a
result of or in lieu of foreclosure; or
(g) grant any increase in compensation or benefits to the
employees or officers of any Firstate Entity, except in accordance with
past practice disclosed in Section 4.2(g) of the EHL Disclosure
Memorandum or as required by Law; pay any severance or termination pay
or any bonus other than pursuant to written policies or written
Contracts in effect on the date of this Agreement and disclosed in
Section 4.2(g) of the EHL Disclosure Memorandum; enter into or amend
any severance agreements with officers of any Firstate Entity; grant
any material increase in fees or other increases in compensation or
other benefits to directors of any Firstate Entity except in accordance
with past practice or as disclosed in Section 4.2(g) of the EHL
Disclosure Memorandum; or
(h) enter into or amend any employment Contract between any
Firstate Entity and any Person (unless such amendment is required by
Law) that the Firstate Entity does not have the unconditional right to
terminate without Liability (other than Liability for services already
rendered), at any time on or after the Closing Date except as disclosed
in Section 4.2(h) of the EHL Disclosure Memorandum, or except as may
not be material in amount; or
(i) adopt any new employee benefit plan of any Firstate Entity
or terminate or withdraw from, or make any material change in or to,
any existing employee benefit plans of any Firstate Entity other than
any such change that is required by Law or that, in the opinion of
counsel, is necessary or advisable to maintain the tax qualified status
of any such plan, or make any distributions from such employee benefit
plans, except as required by Law, the terms of such plans or consistent
with past practice; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting
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controls, except as may be appropriate to conform to changes in Tax
Laws or regulatory accounting requirements or GAAP; or
(k) except in the ordinary course of business, enter into,
modify, amend or terminate any material Contract, or waive, release,
compromise or assign any material rights or claims (other than in
connection with the workout of any Material loan Contract).
4.3 COVENANTS OF REPUBLIC. From the date of this Agreement until
the earlier of the Closing Date or the termination of this Agreement, unless the
prior written consent of EHL shall have been obtained, and except as otherwise
expressly contemplated herein, Republic covenants and agrees that it shall take
no action which would (i) materially adversely affect the ability of any Party
to obtain any Consents required for the transactions contemplated hereby, or
(ii) materially adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement, materially delay the Closing Date
or materially hinder consummation of the Stock Purchase.
4.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give
written notice promptly to the other Party upon becoming aware of the occurrence
or impending occurrence of any event or circumstance relating to it or any of
its Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, an EHL Material Adverse Effect, a Firstate Material Adverse Effect or
a Republic Material Adverse Effect, as applicable, or (ii) would cause or
constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
4.5 REPORTS. Each Party and its Subsidiaries shall file all
reports required to be filed by it with Regulatory Authorities between the date
of this Agreement and the Closing Date and shall deliver to the other Party
copies of all such reports promptly after the same are filed. Any financial
statements contained in any reports to any Regulatory Authority shall be
prepared in accordance with Laws applicable to such reports.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 APPLICATIONS Republic shall promptly prepare, and shall in any
event within 30 days of the date hereof file, and EHL shall cooperate in the
preparation and, where appropriate, filing of, applications with all Regulatory
Authorities having jurisdiction over the transactions contemplated by this
Agreement
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seeking the requisite Consents necessary to consummate the transactions
contemplated by this Agreement. The Parties shall deliver to each other copies
of all filings, correspondence and orders to and from all Regulatory Authorities
in connection with the transactions contemplated hereby.
5.2 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms
and conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 6; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each Party shall use, and
shall cause each of its Subsidiaries to use, its reasonable efforts to obtain
all Consents necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
5.3 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Closing Date, EHL keep Republic advised
of all material developments relevant to the business and operations of Firstate
and its Subsidiaries and to consummation of the Stock Purchase and shall permit
Republic to make or cause to be made such investigation of the business and
properties of Firstate and its Subsidiaries and of their respective financial
and legal conditions as Republic reasonably requests, provided that such
investigation shall be reasonably related to the transactions contemplated
hereby and shall not interfere unnecessarily with normal operations. Republic
shall promptly notify EHL if in the course of its investigation Republic
discovers any fact of circumstance which it believes may constitute a breach of
warranty or representation made by EHL herein.
(b) Republic shall, and shall cause its advisers and
agents to, maintain the confidentiality of all confidential information
furnished to it by EHL or Firstate concerning Firstate and its Subsidiaries'
businesses, operations, and financial positions and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Closing Date, Republic shall promptly return or certify the destruction of all
documents and copies thereof, and all work papers containing confidential
information received from EHL or Firstate.
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(c) Each Party agrees to give the other Party notice as
soon as practicable after any determination by it of any fact or occurrence
relating to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to represent, either
a material breach or any representation, warranty, covenant or agreement of the
other Party or which has had or is reasonably likely to have an EHL Material
Adverse Effect, a Firstate Material Adverse Effect or an Republic Material
Adverse Effect, as applicable.
(d) Republic has previously executed a Confidentiality
Agreement with The Xxxxxx Xxxxxx Company. Such agreement shall (i) remain in
full force and effect upon execution of this Agreement, (ii) terminate upon
completion of the stock purchase contemplated by this Agreement, and (iii)
continue in full force and effect if this Agreement is terminated for any
reason.
5.4 PRESS RELEASES. Prior to the Closing Date, EHL and Republic
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 5.4
shall be deemed to prohibit any Party from making any disclosure which its
counsel deems necessary or advisable in order to satisfy such Party's disclosure
obligations imposed by Law.
5.5 EMPLOYMENT-RELATED LIABILITIES.
(a) As of the Closing Date, neither EHL nor any affiliated entity
shall have any liabilities or obligations with respect to (i) employment-related
liabilities, whether contingent or otherwise, arising out of any individual's
employment or working relationship with any Firstate Entity; or (ii) any benefit
plan, program, arrangement or policy maintained or contributed to by any
Firstate Entity to the extent that such benefit plan, program, arrangement or
policy benefits any Employee of any Firstate Entity (a "Firstate Employee") or
any retiree, dependent, spouse, director or independent contractor of any
Firstate Entity,. As of the Closing Date, Republic shall assume and be liable
for any obligations under any such benefit plan, program, arrangement or policy
maintained or sponsored by any Firstate Entity except as specifically mentioned
above.
(b) Republic agrees to indemnify EHL from any liability, loss,
damage or expense EHL may incur (including reasonable attorneys' fees) with
respect to any claims of any Firstate Employee arising out of (i) employment
with Republic, (ii) the termination of such Firstate Employees' employment as a
result of the actions of Republic on or after the Closing Date or (iii)
liabilities assumed by Republic under this Agreement.
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(c) Republic agrees to be responsible for complying with the
requirements of Code Section 4980B and Part 6 of Title I of ERISA for Firstate
Employees and their beneficiaries having a "qualifying event" (as defined in
Code Section 4980B) on or after the Closing Date.
(d) Effective as soon as administratively feasible after the
Closing Date, Republic will make its employee benefit plans and programs
available to Firstate Employees on the same terms applicable to [Acquiror's]
employees. Republic shall credit each Firstate Employee with such Employee's
term of service with EHL or any affiliate of EHL or any Firstate Entity for
purposes of Buyer's employee benefit plans and programs, except for purposes of
benefit accrual under any ERISA pension plan (as defined in Section 3(2) of
ERISA) maintained by Republic.
5.6 LOAN TO STONEBRIDGE, LTD. On or before the Closing, Firstate
may, at the election of EHL, distribute to EHL or an entity selected by EHL the
outstanding loan from Firstate to Stonebridge Ltd., which loan although
outstanding on the date of this Agreement is not reflected as an asset on the
books and records of Firstate.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and consummate the Stock
Purchase and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by both Parties pursuant
to Section 8.6:
(A) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Stock Purchase shall have been
obtained or made and shall be in full force and effect and all waiting
periods required by Law shall have expired. No Consent obtained from
any Regulatory Authority which is necessary to consummate the
transactions contemplated hereby shall be conditioned or restricted in
a manner (including requirements relating to the raising of additional
capital or the disposition of Assets) which in the reasonable judgment
of the Board of Directors of either Party would so materially adversely
impact the economic or business benefits of the transactions
contemplated by this Agreement that, had such condition or requirement
been known, such Party would not, in its reasonable judgment, have
entered into this Agreement.
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(B) CONSENTS AND APPROVALS. Each Party shall have obtained any
and all Consents required for consummation of the Stock Purchase or for
the preventing of any Default under any Contract or Permit of such
Party.
(C) LEGAL PROCEEDINGS. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal consummation of the transactions
contemplated by this Agreement.
6.2 CONDITIONS TO OBLIGATIONS OF REPUBLIC. The obligations of
Republic to perform this Agreement and consummate the Stock Purchase and the
other transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Republic pursuant to Section 8.6(a):
(A) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 6.2(a), the accuracy of the representations and warranties of
EHL set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Closing Date with the same effect as
though all such representations and warranties had been made on and as
of the Closing Date (provided that representations and warranties which
are confined to a specified date shall speak only as of such date).
There shall not exist inaccuracies or omissions in the representations
and warranties of EHL set forth in this Agreement such that the
aggregate effect of such inaccuracies or omissions has, or is
reasonably likely to have, an EHL Material Adverse Effect or a Firstate
Material Adverse Effect.
(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of EHL to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Closing Date shall have been duly performed and complied
with in all material respects.
(C) CERTIFICATES. EHL shall have delivered to Republic a
certification by its general partner to the effect that he is
authorized to execute and deliver this Agreement on behalf of EHL and
to transfer the Shares as provided in Section 1.2 hereof.
(D) CERTAIN REO. If such properties have not been previously
sold by Firstate, and at the request of Acquiror, an entity selected by
EHL, prior to Closing, shall buy or shall otherwise arrange for the
purchase of two parcels of real estate identified as the Xxx Property
and the Xxxxxx Property, title to which are currently held by wholly
owned
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subsidiaries of Xxxxxxx Street Management Co., Inc., a Firstate
Subsidiary, for a cash contribution of $577,900 with respect to the Xxx
Property and $2,623,639 with respect to the Xxxxxx Property, for a
total of $3,201,539, which represents in each case the agreed net book
value of the parcel. If either property is sold prior to the Closing
for a price lower than the agreed net book value above, EHL shall make
a cash contribution to Firstate equal to the difference between the
agreed net book value and the actual sale price. Firstate may write
down either or both parcels of property on its books to such amount it
deems appropriate. In the event any writedown requires EHL to make an
additional capital contribution to Firstate, such capital contribution
shall be deducted from EHL's obligation as described in this Section
6.2(d).
(E) XXXX LOAN. At or prior to Closing, and at the discretion
of Republic, Xxx Xxxx or an entity selected by him shall repay in full
the loan held by Firstate in the amount of the outstanding balance,
which was approximately $10.5 million as of November 25, 1996, or shall
purchase the loan for the outstanding principal balance thereof plus
the accrued but unpaid interest thereon. At or prior to Closing,
Firstate may release the escrowed marketable securities provided by Xx.
Xxxx that serve as additional collateral for such loan.
(F) XXXXXX EMPLOYMENT CONTRACT. Notwithstanding the provisions
of Section 5.5, EHL or an entity selected by EHL shall assume all
obligations under the employment letter from Firstate to Xxxxxx X.
Xxxxxx, dated February 6, 1992.
6.3 CONDITIONS TO OBLIGATIONS OF EHL. The obligations of EHL to
perform this Agreement and consummate the Stock Purchase and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by EHL pursuant to Section 8.6(b):
(A) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 6.3(a), the accuracy of the representations and warranties of
Republic set forth in this Agreement shall be assessed as of the date
of this Agreement and as of the Closing Date with the same effect as
though all such representations and warranties had been made on and as
of the Closing Date (provided that representations and warranties which
are confined to a specified date shall speak only as of such date).
There shall not exist inaccuracies or omissions in the representations
and warranties of Republic set forth in this Agreement such that the
aggregate effect of such inaccuracies or omissions has, or is
reasonably likely to have, a Republic Material Adverse Effect;.
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(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of Republic to be performed and complied
with pursuant to this Agreement and the other agreements contemplated
hereby prior to the Closing Date shall have been duly performed and
complied with in all material respects.
(C) CAPITAL MAINTENANCE AGREEMENTS. EHL shall have obtained
assurances acceptable to it that the capital maintenance obligations
which one of its general partners has to the Office of Thrift
Supervision with respect to Firstate shall be terminated upon
consummation of the transactions contemplated by this Agreement, and
that all collateral held in trust related thereto shall released.
6.4 POST-CLOSING COVENANTS. For a period of one year following the
Closing, EHL and Republic agree as follows:
(A) GENERAL. In case at any time after the Closing any further
action is necessary to carry out the provisions of this Agreement, each
of the Parties will take such further action (including the execution
and delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of the
requesting Party. EHL acknowledges and agrees that from and after the
Closing Republic will be entitled to obtain copies of all documents,
books, records (including Tax records), agreements and financial data
of any sort of the Firstate Entities as may be in its possession,
custody or control.
(B) TRANSITION. EHL will not take any action that is intended
to have the effect of discouraging any depositor or borrower of
Firstate Entity from maintaining such relationship with Firstate or its
successors after the Closing.
ARTICLE 7
TERMINATION
7.1 TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated and the Stock Purchase abandoned at
any time prior to the Closing Date:
(a) By mutual consent of Republic and EHL; or
(b) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a
material breach by the other Party of any representation or warranty
contained in this Agreement which cannot be or has not been cured
within 30
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days after the giving of written notice to the breaching Party of such
breach and which breach is reasonably likely, in the opinion of the
non- breaching Party, to have, individually or in the aggregate, an EHL
Material Adverse Effect, a Firstate Material Adverse Effect or a
Republic Material Adverse Effect, as applicable; or
(c) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a
material breach by the other Party of any covenant or agreement
contained in this Agreement which cannot be or has not been cured
within 30 days after the giving of written notice to the breaching
Party of such breach; or
(d) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event any
Consent of any Regulatory Authority required for consummation of the
Stock Purchase and the other transactions contemplated hereby shall
have been denied by final nonappealable action of such authority or if
any action taken by such authority is not appealed within the time
limit for appeal; or
(e) By either Party in the event that the Stock Purchase shall
not have been consummated by September 30, 1997, if the failure to
consummate the transactions contemplated hereby on or before such date
is not caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 7.1(e).
7.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 7.1, this Agreement shall
become void and have no effect, except that (i) the provisions of this Section
7.2 and Article 8 and Section 5.3(b) and (d) shall survive any such termination
and abandonment, and (ii) a termination pursuant to Sections 7.1(b) or 7.1(c)
shall not relieve the breaching Party from Liability for an uncured willful
breach of a representation, warranty, covenant, or agreement giving rise to such
termination.
7.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Closing Date except this Section 7.3, Section
5.3(b) and (d), Section 5.5, and Article 8 and the certificate required in
Section 6.2(c).
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ARTICLE 8
MISCELLANEOUS
8.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"REPUBLIC MATERIAL ADVERSE EFFECT" shall mean an event, change
or occurrence which, individually or together with any other event,
change or occurrence, has a material adverse impact on the ability of
Republic to perform its obligations under this Agreement or to
consummate the Stock Purchase or the other transactions contemplated by
this Agreement provided that "Material Adverse Effect" shall not be
deemed to include the impact of (a) changes in banking and similar Laws
of general applicability or interpretations thereof by courts or
governmental authorities, (b) changes in generally accepted accounting
principles or regulatory accounting principles generally applicable to
banks or savings associations or their holding companies, (c) actions
and omissions of Republic (or any of its Subsidiaries) taken with the
prior informed written Consent of EHL in contemplation of the
transactions contemplated hereby, and (d) the direct effects of
compliance with this Agreement on the operating performance of
Republic, including expenses incurred by Republic in consummating the
transactions contemplated by this Agreement.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such Person;
(ii) any officer, director, partner, employer, or direct or indirect
beneficial owner of any 10% or greater equity or voting interest of
such Person; or (iii) any other Person for which a Person described in
clause (ii) acts in any such capacity.
"AGREEMENT" shall mean this Stock Purchase Agreement,
including the Exhibits delivered pursuant hereto and incorporated
herein by reference.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized
in such Person's business, directly or indirectly, in whole or in part,
whether or not carried on the books and records of such Person, and
whether or not owned in the name of such Person or any Affiliate of
such Person and wherever located.
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"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement between The Xxxxxx Xxxxxx Company and
Republic.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture,
instrument, lease, obligation, plan, practice, restriction,
understanding, or undertaking of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock, Assets or business.
"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law, Order, or
Permit, (ii) any occurrence of any event that with the passage of time
or the giving of notice or both would constitute a breach or violation
of, default under, contravention of, or conflict with, any Contract,
Law, Order, or Permit, or (iii) any occurrence of any event that with
or without the passage of time or the giving of notice would give rise
to a right of any Person to exercise any remedy or obtain any relief
under, terminate or revoke, suspend, cancel, or modify or change the
current terms of, or renegotiate, or to accelerate the maturity or
performance of, or to increase or impose any Liability under, any
Contract, Law, Order, or Permit, where, in any such event, such Default
is reasonably likely to have, individually or in the aggregate, an EHL
Material Adverse Effect, a Firstate Material Adverse Effect or a
Republic Material Adverse Effect, as applicable.
"EHL DISCLOSURE MEMORANDUM" shall mean the written information
entitled "Equity Holdings Limited Disclosure Memorandum" delivered
prior to the date of this Agreement to Republic describing in
reasonable detail the matters contained therein and, with respect to
each disclosure made therein, specifically referencing each Section of
this Agreement under which such disclosure is being made. Information
disclosed with respect to one Section shall not be deemed to be
disclosed for purposes of any other Section not specifically referenced
with respect thereto.
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"EHL MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with any other event, change
or occurrence, has a material adverse impact on the ability of EHL to
perform its obligations under this Agreement or to consummate the Stock
Purchase or the other transactions contemplated by this Agreement
provided that "Material Adverse Effect" shall not be deemed to include
the impact of (a) changes in banking and similar Laws of general
applicability or interpretations thereof by courts or governmental
authorities, (b) changes in generally accepted accounting principles or
regulatory accounting principles generally applicable to banks or
savings associations or their holding companies, (c) actions and
omissions of EHL (or any of its Subsidiaries) taken with the prior
informed written Consent of Republic in contemplation of the
transactions contemplated hereby, and (d) the direct effects of
compliance with this Agreement on the operating performance of EHL,
including expenses incurred by EHL in consummating the transactions
contemplated by this Agreement.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution
or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata)
and which are administered, interpreted, or enforced by the United
States Environmental Protection Agency and state and local agencies
with jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the Comprehensive
Environmental Response Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened releases of
any Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"FIRSTATE COMMON STOCK" shall mean the $7.50 par value common
stock of Firstate.
"FIRSTATE EMPLOYEE" shall mean any person employed by any
Firstate Entity as of the Closing Date.
"FIRSTATE ENTITIES" shall mean, collectively, Firstate and all
Firstate Subsidiaries.
"FIRSTATE FINANCIAL STATEMENTS" shall mean (i) the
consolidated balance sheets (including related notes and schedules, if
any) of Firstate as of September 30, 1996, and
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as of December 31, 1995 and 1994, and the related statements of income,
changes in shareholders' equity, and cash flows (including related
notes and schedules, if any) for the 9 months ended September 30, 1996,
and for each of the three fiscal years ended December 31, 1995, 1994
and 1993, and (ii) the consolidated balance sheets of Firstate
(including related notes and schedules, if any) and related statements
of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) with respect to periods ended
subsequent to September 30, 1996.
"FIRSTATE MATERIAL ADVERSE EFFECT" shall mean an event, change
or occurrence which, individually or together with any other event,
change or occurrence, has a material adverse impact on the financial
condition of Firstate, provided that "Material Adverse Effect" shall
not be deemed to include the impact of (a) changes in banking and
similar Laws of general applicability or interpretations thereof by
courts or governmental authorities, (b) changes in generally accepted
accounting principles or regulatory accounting principles generally
applicable to banks or savings associations or their holding companies,
(c) actions and omissions of Firstate (or any of its Subsidiaries)
taken with the prior informed written Consent of Republic in
contemplation of the transactions contemplated hereby, and (d) the
direct effects of compliance with this Agreement on the operating
performance of Firstate, including expenses incurred by Firstate in
consummating the transactions contemplated by this Agreement.
"FIRSTATE SUBSIDIARIES" shall mean the Subsidiaries of
Firstate, which shall include the Firstate Subsidiaries described in
Section 2.5 and any corporation or other organization acquired as a
Subsidiary of Firstate in the future and held as a Subsidiary by
Firstate on the Closing Date.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental
Laws) and (ii) any chemicals, pollutants, contaminants, petroleum,
petroleum products, or oil (and specifically shall include asbestos
requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities and any polychlorinated
biphenyls).
"INTELLECTUAL PROPERTY" shall mean copyrights, patents,
trademarks, service marks, service names, trade names, applications
therefor, technology rights and licenses,
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computer software (including any source or object codes therefor or
documentation relating thereto), trade secrets, franchises, know-how,
inventions, and other intellectual property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall
mean the personal knowledge after due inquiry of the chairman,
president, chief financial officer, chief operating officer, chief
credit officer or general counsel of such Person. Knowledge of EHL
shall mean the personal knowledge of the general partners of EHL or
personal knowledge after due inquiry of the president, chief executive
officer and chief operating officer of Firstate as defined herein.
"LAW" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement, rule, or
statute applicable to a Person or its Assets, Liabilities, or business,
including those promulgated, interpreted or enforced by any Regulatory
Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or
expense (including costs of investigation, collection and defense),
claim, deficiency, guaranty or endorsement of or by any Person (other
than endorsements of notes, bills, checks, and drafts presented for
collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute or contingent, liquidated or unliquidated,
matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation,
infringement, lien, mortgage, pledge, reservation, restriction,
security interest, title retention or other security arrangement, or
any adverse right or interest, charge, or claim of any nature
whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet due
and payable, (ii) for depository institution Subsidiaries of a Party,
pledges to secure deposits and other Liens incurred in the ordinary
course of the banking business, and (iii) Liens which do not materially
impair the use of or title to the Assets subject to such Lien.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other
proceeding relating to or affecting a
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Party, its business, its Assets (including Contracts related to it), or
the transactions contemplated by this Agreement, but shall not include
regular, periodic examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"MATERIAL" for purposes of this Agreement shall be determined
in light of the facts and circumstances of the matter in question;
provided that any specific monetary amount stated in this Agreement
shall determine materiality in that instance.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award,
ruling, or writ of any federal, state, local or foreign or other court,
arbitrator, mediator, tribunal, administrative agency, or Regulatory
Authority.
"PARTICIPATION FACILITY" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates
in the management and, where required by the context, said term means
the owner or operator of such facility or property, but only with
respect to such facility or property.
"PARTY" shall mean either EHL or Republic, and "PARTIES" shall
mean both EHL and Republic.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing,
franchise, license, notice, permit, or right to which any Person is a
party or that is or may be binding upon or inure to the benefit of any
Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial
or governmental entity, such as, but not limited to, a corporation,
general partnership, joint venture, limited partnership, limited
liability company, trust, business association, group acting in
concert, or any person acting in a representative capacity.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC,
the NYSE, the NASD, the Federal Trade Commission, the United States
Department of Justice, the Board of the Governors of the Federal
Reserve System, the Office of Thrift Supervision (including its
predecessor, the Federal Home Loan Bank Board), the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation,
and all other federal, state, county, local or other governmental or
regulatory agencies, authorities (including self-regulatory
authorities), instrumentalities, commissions, boards or
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bodies having jurisdiction over the Parties and their respective
Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative
engaged by a Person.
"SHAREHOLDER'S RIGHTS" shall mean all arrangements, calls,
commitments, Contracts, options, rights to subscribe to, scrip,
understandings, warrants, or other binding obligations of any character
whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of a Person or by which a
Person is or may be bound to issue additional shares of its capital
stock or other Shareholder's Rights.
"SIGNIFICANT SUBSIDIARY" shall mean any present or future
consolidated Subsidiary of the Party in question, the assets of which
constitute ten percent (10%) or more of the consolidated assets of such
Party as reflected on such Party's consolidated statement of condition
prepared in accordance with GAAP.
"SUBSIDIARIES" shall mean all those corporations,
associations, or other business entities of which the entity in
question either (i) owns or controls 50% or more of the outstanding
equity securities either directly or through an unbroken chain of
entities as to each of which 50% or more of the outstanding equity
securities is owned directly or indirectly by its parent (provided,
there shall not be included any such entity the equity securities of
which are owned or controlled in a fiduciary capacity), (ii) in the
case of partnerships, serves as a general partner, (iii) in the case of
a limited liability company, serves as a managing member, or (iv)
otherwise has the ability to elect a majority of the directors,
trustees or managing members thereof.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
"TAX" or "TAXES" shall mean any federal, state, county, local,
or foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on
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minimum, estimated, or other tax or governmental fee of any kind
whatsoever, imposes or required to be withheld by the United States or
any state, county, local or foreign government or subdivision or agency
thereof, including any interest, penalties, and additions imposed
thereon or with respect thereto.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
Allowance Section 2.9
Closing Section 1.2
Employment Agreements Section 6.1(k)
Firstate Benefit Plans Section 2.15
Firstate Contracts Section 2.16
Firstate ERISA Plan Section 2.15
Purchase Price Section 1.1
(c) Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation."
8.2 EXPENSES.
(a) Except as otherwise provided in this Section 8.2,
each of the Parties shall bear and pay all direct costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including filing, registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel. Absent willful breach by a Party of the terms of this
Agreement, neither Party shall have any liability to the other upon termination
except as specifically provided herein.
(b) Nothing contained in this Section 8.2 shall
constitute or shall be deemed to constitute liquidated damages for the willful
breach by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party in the event of willful breach by the other.
8.3 BROKERS AND FINDERS. Except for The Xxxxxx Xxxxxx Company as
to Firstate and except for [Acquiror financial advisors] as to Republic, each of
the Parties represents and warrants that neither it nor any of its officers,
directors, employees, or Affiliates has employed any broker or finder or
incurred any Liability for any financial advisory fees,
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investment bankers' fees, brokerage fees, commissions, or finders' fees in
connection with this Agreement or the transactions contemplated hereby. Each
party shall pay its own expenses relating to the financial advisors named above.
In the event of a claim by any broker or finder based upon his or its
representing or being retained by or allegedly representing or being retained by
Firstate or EHL or by Republic, each of EHL and Republic, as the case may be,
agrees to indemnify and hold the other Party harmless of and from any Liability
in respect of any such claim.
8.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral (except, as to Section
5.3(b) and(d), for the Confidentiality Agreement). Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
8.5 AMENDMENTS. To the extent permitted by Law, this Agreement may
be amended by a subsequent writing signed by each of the Parties upon the
approval of each of the Parties, whether before or after shareholder approval of
this Agreement has been obtained.
8.6 WAIVERS.
(a) Prior to or on the Closing Date, Republic, acting through
its Board of Directors, chief executive officer or other authorized officer,
shall have the right to waive any Default in the performance of any term of this
Agreement by EHL, to waive or extend the time for the compliance or fulfillment
by EHL of any and all of its obligations under this Agreement, and to waive any
or all of the conditions precedent to the obligations of Republic under this
Agreement, except any condition which, if not satisfied, would result in the
violation of any Law. No such waiver shall be effective unless in writing signed
by a duly authorized officer of Republic.
(b) Prior to or on the Closing Date, EHL, acting through a
general partner or other authorized officer, shall have the right to waive any
Default in the performance of any term of this Agreement by Republic, to waive
or extend the time for the compliance or fulfillment by Republic of any and all
of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of EHL under this Agreement, except any
condition which, if not satisfied, would result in the violation of any Law. No
such waiver shall be
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effective unless in writing signed by a general partner or other duly authorized
officer of EHL.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
8.7 ASSIGNMENT. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective permitted successors and
assigns.
8.8 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
EHL Equity Holdings Limited
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy Number: (000) 000-0000
----------------------------------------
Attention: Xxx Xxxxxxx
Copy to Counsel: Xxxxxxxxx & Xxxxxxxxxxx
0 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy Number: (000) 000-0000
----------------------------------------
Attention: Xxxxxx X. Xxxxxxxxxxx
- and - Xxxxxx & Bird
0000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000-0000
Telecopy Number: (000) 000-0000
----------------------------------------
Attention: Xxxx X. Xxxxxxx
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00
Xxxxxxxx: Republic Bancshares, Inc.
000 Xxxxxx Xxx, XX
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
---------------------------------------
Attention: Xxxx Xxxxxxxx
Copy to Counsel: Holland & Knight
0000 Xxxxxxxxxxxx Xxx.
Xxxxxxxxxx, X.X. 00000
Telecopy Number: (000) 000-0000
---------------------------------------
Attention: Xxxx X. Xxxxxxx
8.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Illinois, without regard
to any applicable conflicts of Laws. The parties acknowledge that the laws of
the State of Florida will govern the corporate procedures of Republic in
connection with the authorization of this Agreement, and that this provision is
not a choice of venue or forum in the event of a dispute hereunder.
8.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
8.11 CAPTIONS; ARTICLES AND SECTIONS. The captions contained in
this Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles and Sections of this
Agreement.
8.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement shall be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of all parties
hereto.
8.13 SEVERABILITY Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other
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jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
IN WITNESS WHEREOF, each of the Republic and EHL has executed this
Agreement under seal and each of the other Parties has caused this Agreement to
be executed on its behalf by its duly authorized officers as of the day and year
first above written.
REPUBLIC BANCSHARES, INC.
By:
----------------------------------
Xxxx X. Xxxxxxxx, President
EQUITY HOLDINGS LIMITED
By:
----------------------------------
Xxxxxx Xxxx as Trustee of the
Xxxxxx Xxxx Revocable Trust,
General Partner of Equity Holdings
Limited
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