Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
BLUE RIVER BANCSHARES, INC.
AND
FIRSTATLANTIC FINANCIAL HOLDINGS, INC.
SEPTEMBER 18, 2006
TABLE OF CONTENTS
SECTION 1 THE TRANSACTIONS................................................. 1
1.01. The Purchase and Assumption....................................... 1
1.02. The Stock Purchase................................................ 2
SECTION 2 REPRESENTATIONS AND WARRANTIES OF BLUE RIVER..................... 3
2.01. Organization and Authority........................................ 3
2.02. Authorization..................................................... 4
2.03. Litigation and Pending Proceedings................................ 5
2.04. Broker's, Finder's or Other Fees.................................. 6
2.05. Accuracy of Statements Made and Materials Provided to Holdings.... 6
SECTION 3 REPRESENTATIONS AND WARRANTIES OF HOLDINGS....................... 6
3.01. Organization and Authority........................................ 7
3.02. Authorization..................................................... 7
3.03. Litigation and Pending Proceedings................................ 8
3.04. Financing......................................................... 9
3.05. Broker's, Finder's or Other Fees.................................. 9
3.06. Accuracy of Statements Made and Materials Provided to Blue River.. 9
SECTION 4 COVENANTS OF BLUE RIVER.......................................... 9
4.01. [Intentionally Omitted]........................................... 9
4.02. Bank Regulatory Approvals and Actions............................. 9
4.03. Press Releases.................................................... 10
4.04. Blue River Disclosure Schedule Update............................. 10
4.05. [Intentionally Omitted]........................................... 10
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4.06. Adverse Actions................................................... 10
SECTION 5 COVENANTS OF HOLDINGS............................................ 11
5.01. Holdings Financing................................................ 11
5.02. Bank Regulatory Approvals and Actions............................. 11
5.03. Press Releases.................................................... 11
5.04. [Intentionally Omitted]........................................... 11
5.05. Adverse Actions................................................... 12
SECTION 6 CONDITIONS PRECEDENT TO THE TRANSACTIONS......................... 12
6.01. Blue River........................................................ 12
6.02. Holdings.......................................................... 13
SECTION 7 TERMINATION OF TRANSACTIONS...................................... 14
7.01. Manner of Termination............................................. 14
7.02. Effect of Termination............................................. 15
SECTION 8 CLOSING.......................................................... 16
8.01. Closing Date and Place............................................ 16
8.02. Deliveries........................................................ 16
SECTION 9 MISCELLANEOUS.................................................... 17
9.01. Non-survival of Representations, Warranties and Agreements........ 17
9.02. Binding Effect; Assignment........................................ 17
9.03. Waiver; Amendment................................................. 17
9.04. Notices........................................................... 18
9.05. Headings.......................................................... 18
9.06. Severability...................................................... 18
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9.07. Counterparts...................................................... 19
9.08. Governing Law; Enforcement; Specific Performance; Jury Trial...... 19
9.09. Entire Agreement.................................................. 19
9.10. Expenses.......................................................... 19
9.11. Certain References................................................ 19
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into, effective as of the 18th day of September, 2006, by and among Blue
River Bancshares, Inc. ("Blue River") and FirstAtlantic Financial Holdings, Inc.
("Holdings").
WITNESSETH:
WHEREAS, Blue River is an Indiana corporation registered as a savings and
loan holding company under the Home Owners Loan Act, as amended ("HOLA"), with
its principal office located in Shelbyville, Shelby County, Indiana; and
WHEREAS, Blue River is the sole owner of all of the outstanding capital
stock of Shelby County Bank ("SCB") and Paramount Bank ("Paramount")
(collectively, the "Blue River Subsidiaries"); and
WHEREAS, Holdings is a Florida corporation, with its principal office
located in Jacksonville, Florida; and
WHEREAS, Blue River and Holdings seek a corporate reorganization whereby
(i) SCB will acquire certain assets, and certain liabilities, of Paramount and
(ii) Holdings will acquire all of the outstanding capital stock of Paramount
from Blue River; and
WHEREAS, the respective Boards of Directors of each of Blue River and
Holdings have determined that it is in the best interests of their respective
corporations to consummate the business combinations and other transactions
contemplated by this Agreement and that such transactions are consistent with,
and in furtherance of, their respective business strategies and goals, and have
approved this Agreement and authorized its execution.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants and agreements herein contained and other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby make this Agreement as follows:
SECTION 1
THE TRANSACTIONS
1.01. The Purchase and Assumption.
(a) General Description. Blue River shall take all action necessary and
appropriate, including entering into a purchase and assumption agreement (the
"P&A Agreement") substantially in the form attached hereto as Exhibit A, to
cause SCB to acquire certain assets, and certain liabilities, of Paramount and
to provide indemnification of Paramount with respect to such liabilities (the
"P&A Transaction").
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(b) Consideration. The consideration to be received by Paramount from SCB
in the P&A Transaction shall be an amount agreeable to Paramount and SCB (the
"P&A Consideration"). The P&A Consideration shall be paid as provided in the P&A
Agreement.
(c) Effective Time. Upon the terms and subject to the conditions specified
in this Agreement, unless otherwise mutually agreed to by the parties hereto,
Blue River shall cause the P&A Transaction to be effective as of the Effective
Time.
1.02. The Stock Purchase.
(a) General Description. Blue River and Holdings shall take all action
necessary and appropriate, including entering into a stock purchase agreement
(the "Stock Purchase Agreement") substantially in the form attached hereto as
Exhibit B, to cause Holdings to acquire all of the capital stock of Paramount
from Blue River (the "Stock Purchase Transaction").
(b) Consideration. The consideration to be received by Blue River from
Holdings in the Stock Purchase Transaction shall equal One Million Six Hundred
Seventy-Five Thousand Dollars ($1,675,000.00) (the "Stock Consideration"). The
Stock Consideration shall be paid as provided in the Stock Purchase Agreement.
(c) Xxxxxxx Money Deposit. Upon the date of this Agreement, Holdings shall
deposit with SCB an amount equal to Five Hundred Thousand Dollars ($500,000.00)
(the "Xxxxxxx Money") to be held in a restricted deposit account and such amount
shall only be disbursed pursuant to the terms of this Agreement. If this
Agreement is terminated pursuant to Section 7 hereof, then the Xxxxxxx Money
shall be forfeited by Holdings and paid by SCB to Blue River, as liquidated
damages and in lieu of any liabilities otherwise due Blue River; provided,
however, if Holdings terminates this Agreement pursuant to Section 7.01(a)(ii),
7.01(c)(i), 7.01(c)(ii) or because of Holdings failure to obtain regulatory
approval to consummate the Transactions after compliance with Section 5.02(a)
(excluding any failure due in whole or in part to Holdings not being able to
obtain the Required Regulatory Capital), then Blue River shall refund to
Holdings within forty-five (45) days of such termination an amount, in cash or
other immediately available funds, equal to the Xxxxxxx Money; provided,
however, if this Agreement is terminated because of Holdings failure to obtain
regulatory approval to consummate the Transactions (excluding any failure due in
whole or in part to Holdings not being able to obtain the Required Regulatory
Capital), then Blue River shall only be obligated to refund to Holdings Four
Hundred Thousand Dollars ($400,000.00) of the Xxxxxxx Money. The parties hereby
acknowledge and agree that the Xxxxxxx Money shall compensate Blue River for (i)
expenses incurred for attorneys, accountants, and consultants of Blue River with
respect to the Transactions, (ii) Blue River's management time and expense in
investigating, analyzing, developing and pursuing the Transactions, and (iii)
expenses relating to Blue River's due diligence efforts. Holdings further
acknowledges and agrees that the amount of the Xxxxxxx Money is fair, reasonable
and not a penalty and that its obligations with respect to the Xxxxxxx Money
shall survive any termination of this Agreement.
(d) Effective Time. Upon the terms and subject to the conditions specified
in this Agreement, unless otherwise mutually agreed to by the parties hereto,
the Blue River and Holdings shall cause the Stock Purchase Transaction to be
effective as of the Effective Time.
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SECTION 2
REPRESENTATIONS AND WARRANTIES OF BLUE RIVER
For the purpose of this Agreement, and in relation to Blue River and the
Blue River Subsidiaries, a "Material Adverse Effect on Blue River" means any
effect that (i) is material and adverse to the financial position, properties,
assets, liabilities, results of operations, liquidity, or business and future
prospects of Blue River and the Blue River Subsidiaries, as a consolidated
whole, as they existed as of the date of this Agreement, or (ii) would
materially impair the ability of Blue River or the Blue River Subsidiaries to
perform their respective obligations under this Agreement or under any of the
Transaction Agreements (defined herein as the Stock Purchase Agreement and the
P&A Agreement) or otherwise materially threaten or materially impede the
consummation of the Transactions and the other transactions contemplated by this
Agreement; provided however, that Material Adverse Effect on Blue River 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 GAAP or regulatory accounting requirements
applicable to banks or savings associations and their holding companies
generally, (c) any modifications or changes to valuation policies and practices
in connection with the Transactions, or restructuring charges taken in
connection with the Transactions, in each case in accordance with GAAP, (d)
effects of any action taken with the prior written consent of Holdings, (e)
changes in general levels of interest rates or conditions or circumstances that
affect the banking industry, generally, and (f) commencement of a new war or an
escalation of current wars, armed hostilities or terrorism directly or
indirectly involving the United States of America.
No representation or warranty of Blue River contained in this Section 2
shall be deemed untrue, incomplete or incorrect, and Blue River shall not be
deemed to have breached any such specified representation or warranty, as a
consequence of the existence of any fact, event or circumstance unless such
fact, circumstance or event, individually or taken together with all other
facts, events or circumstances inconsistent with any representation or warranty
contained in this Section 2, has had or is reasonably likely to have a Material
Adverse Effect on Blue River (the "Blue River Disclosure Standard").
Accordingly, Blue River hereby represents and warrants to Holdings, as of
the date hereof and as of the Effective Time (subject to the Blue River
Disclosure Standard), as follows:
2.01. Organization and Authority.
(a) Blue River is a corporation duly organized and validly existing under
the laws of the State of Indiana and is a registered savings and loan holding
company under HOLA. Blue River has full power and authority (corporate and
otherwise) to own, operate and lease its properties as presently owned, operated
and leased and to conduct its business in the manner and by the means utilized
as of the date hereof. Blue River has a class of stock registered pursuant to
Section 12, and is subject to the reporting requirements, of the Securities
Exchange Act of 1934, as amended (the "1934 Act"). Except as set forth in the
Blue River Disclosure Schedule, the Blue River Subsidiaries are Blue River's
only direct subsidiaries, and except as disclosed in the Blue River Disclosure
Schedule, Blue River owns no voting stock or equity securities of any other
corporation, partnership, association or other entity.
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(b) SCB is a federal savings association duly organized, validly existing
and in good standing under the laws of the United States of America. SCB is
subject to primary regulatory supervision and examination by the OTS. SCB has
full power and authority (corporate and otherwise) to own, operate and lease its
properties as presently owned, operated and leased and to conduct its business
in the manner and by the means utilized as of the date hereof. SCB has no
subsidiaries and owns no voting stock or equity securities of any corporation,
partnership, association or other entity.
(c) Paramount is a federal savings association duly organized, validly
existing and in good standing under the laws of the United States of America.
Paramount is subject to primary regulatory supervision and examination by the
OTS. Paramount has full power and authority (corporate and otherwise) to own,
operate and lease its properties as presently owned, operated and leased and to
conduct its business in the manner and by the means utilized as of the date
hereof. Paramount has no subsidiaries and owns no voting stock or equity
securities of any corporation, partnership, association or other entity.
(d) All of the issued and outstanding shares of capital stock of SCB and
Paramount are owned by Blue River free and clear of all liens, pledges, charges,
claims, encumbrances, restrictions, security interests, options and pre-emptive
rights and of all other rights or claims of any other person, corporation or
entity with respect thereto.
(e) Except as set forth in the Blue River Disclosure Schedule neither Blue
River nor the Blue River Subsidiaries has the right to designate a director,
officer or other management official of (or to consent to changes in directors,
officers or other management officials, or otherwise exercise any controlling
influence over) any for-profit or non-profit corporation, partnership, limited
liability company, joint venture, trust, foundation, or other entity or
association, other than the Blue River Subsidiaries.
2.02. Authorization.
(a) Blue River has the requisite corporate power and authority to enter
into this Agreement and to perform its obligations hereunder, subject to the
fulfillment of the conditions precedent set forth in Section 6.01(d) and (e)
hereof. Blue River is not aware of any reason why the approvals set forth in
Section 6.01(e) will not be received in a timely manner and without the
imposition of a condition, restriction or requirement of the type described in
Section 6.01(e). This Agreement, and its execution and delivery by Blue River,
has been duly authorized and approved by the Board of Directors of Blue River
and, assuming due execution and delivery by Holdings, constitutes a valid and
binding obligation of Blue River, subject to the fulfillment of the conditions
precedent set forth in Section 6.01 hereof, and is enforceable in accordance
with its terms, except to the extent limited by general principles of equity and
public policy and by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium, readjustment of debt or other laws of
general application relating to or affecting the enforcement of creditors'
rights.
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(b) Except as set forth in the Blue River Disclosure Schedule, neither the
execution of this Agreement nor consummation of the Transactions: (i) conflicts
with or violates the organizational documents of Blue River or any Blue River
Subsidiary; (ii) conflicts with or violates any local, state, federal or foreign
law, statute, ordinance, rule or regulation (provided that the approvals of or
filings with applicable government regulatory agencies or authorities required
for consummation of the Transactions are obtained) or any court or
administrative judgment, order, injunction, writ or decree; (iii) conflicts
with, results in a breach of or constitutes a default under any note, bond,
indenture, mortgage, deed of trust, license, lease, contract, agreement,
arrangement, commitment or other instrument to which Blue River or any Blue
River Subsidiary is a party or by which Blue River or any Blue River Subsidiary
is subject or bound; (iv) results in the creation of or gives any person,
corporation or entity the right to create any lien, charge, claim, encumbrance
or security interest, or results in the creation of any other rights or claims
of any other party (other than Holdings) or any other adverse interest, upon any
right, property or asset of Blue River or any Blue River Subsidiary; or (v)
terminates or gives any person, corporation or entity the right to terminate,
accelerate, amend, modify or refuse to perform under any note, bond, indenture,
mortgage, agreement, contract, lease, license, arrangement, deed of trust,
commitment or other instrument to which Blue River or any Blue River Subsidiary
is bound or with respect to which Blue River or any Blue River Subsidiary is to
perform any duties or obligations or receive any rights or benefits.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with a Governmental Authority is required by Blue River or
any Blue River Subsidiary in connection with the execution and delivery of this
Agreement and the Transaction Agreements by Blue River or any Blue River
Subsidiary or the consummation by Blue River or any Blue River Subsidiary of the
Transactions, except for such applications, filings, authorizations, orders and
approvals as may be required under HOLA or the regulations of the OTS.
2.03. Litigation and Pending Proceedings.
(a) Except as set forth in the Blue River Disclosure Schedule and lawsuits
involving collection of delinquent accounts as to which no counterclaims are
asserted against Blue River or any Blue River Subsidiary, there are no claims,
actions, suits, proceedings, mediations, arbitrations or investigations pending
(or, to the knowledge of Blue River, threatened) in any court or before any
government agency or authority, arbitration panel or otherwise (nor does Blue
River have any knowledge of a reasonable basis for any claim, action, suit,
proceeding, litigation, arbitration, or investigation) against, by or affecting
Blue River or any Blue River Subsidiary, including but not limited to those
which, if successful, would prevent the performance of this Agreement, declare
the same unlawful or cause the rescission hereof.
(b) Except as set forth in the Blue River Disclosure Schedule, neither Blue
River nor any Blue River Subsidiary is: (i) subject to any outstanding judgment,
order, writ, injunction or decree of any court, arbitration panel or
governmental agency or authority; (ii) presently charged with or, to the
knowledge of Blue River, under governmental investigation with respect to any
actual or alleged violations of any law, statute, rule, regulation or ordinance;
or (iii) the subject of any pending or, to the knowledge of Blue River,
threatened proceeding by any government regulatory agency or authority having
jurisdiction over its respective business, assets, capital, properties or
operations.
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2.04. Broker's, Finder's or Other Fees(a). Except for reasonable fees of Blue
River's attorneys, accountants, employee benefits consultants and investment
bankers, no agent, broker or other person acting on behalf of Blue River or any
Blue River Subsidiary or under any authority of Blue River or any Blue River
Subsidiary is or shall be entitled to any commission, broker's or finder's fee
or any other form of compensation or payment from any of the parties hereto
relating to this Agreement and the Transactions. No action has been taken by
Blue River that would give rise to any valid claim against any party hereto for
a brokerage commission, finder's fee or other like payment with respect to the
Transactions.
2.05. Financial Statements and Reports. The consolidated financial statements of
Blue River that have been included in Blue River's Annual Report on Form 10-KSB
for its fiscal year ended December 31, 2005 and its Quarterly Reports on Form
10-QSB for the quarters ended March 31, 2006 and June 30, 2006 (the "Blue River
Financial Statements") present fairly the consolidated financial position,
results of operations, and cash flows of Blue River as of and for the periods
covered thereby in conformance with GAAP applied on a consistent basis. All
filings by Blue River with the SEC complied or will comply in all respects as to
form with the applicable requirements and were and will be true, accurate and
complete in all respects as of the dates of the filings, and no such filings
contained or will contain any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements, at the time and
in the light of the circumstances under which they were made, not false or
misleading.
2.06. Accuracy of Statements Made and Materials Provided to Holdings. No
representation, warranty in this Section 2 or other statement made, or any
information provided, by Blue River or any Blue River Subsidiary in this
Agreement, the Transaction Agreements or the Blue River Disclosure Schedule (and
any update thereto), and no written report, statement, list, certificate,
materials or other written information furnished or to be furnished by Blue
River or any Blue River Subsidiary to Holdings through and including the
Effective Time in connection with this Agreement, the Transaction Agreements or
the Transactions, contains or shall contain any untrue statement of material
fact or omits or shall omit to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances in which
they are made and in light of the total mix of information known to Holdings,
not false or misleading.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
For the purpose of this Agreement, and in relation to Holdings, a "Material
Adverse Effect on Holdings" means any effect that (i) is material and adverse to
the financial position, properties, assets, liabilities, results of operations,
liquidity, or business and future prospects of Holdings as they existed as of
the date of this Agreement, or (ii) would materially impair the ability of
Holdings to perform its obligations under this Agreement or under any of the
Transaction Agreements or otherwise materially threaten or materially impede the
consummation of the Transactions and the other transactions contemplated by this
Agreement; provided however, that Material Adverse Effect on Holdings 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 GAAP or regulatory accounting requirements
applicable to banks or savings associations and their holding companies
generally, (c) any
6
modifications or changes to valuation policies and practices in connection with
the Transactions, or restructuring charges taken in connection with the
Transactions, in each case in accordance with GAAP, (d) effects of any action
taken with the prior written consent of Blue River, (e) changes in general
levels of interest rates or conditions or circumstances that affect the banking
industry, generally, and (f) commencement of a new war or an escalation of
current wars, armed hostilities or terrorism directly or indirectly involving
the United States of America.
No representation or warranty of Holdings contained in this Section 3 shall
be deemed untrue, incomplete or incorrect, and Holdings shall not be deemed to
have breached any such specified representation or warranty, as a consequence of
the existence of any fact, event or circumstance unless such fact, circumstance
or event, individually or taken together with all other facts, events or
circumstances inconsistent with any representation or warranty contained in this
Section 3, has had or is reasonably likely to have a Material Adverse Effect on
Holdings (the "Holdings Disclosure Standard").
Accordingly, Holdings hereby represent and warrant to Blue River, as of the
date hereof and as of the Effective Time (subject to the Holdings Disclosure
Standard), as follows:
3.01. Organization and Authority.
(a) Holdings is a corporation duly organized and validly existing and in
good standing under the laws of the State of Florida. Holdings has full power
and authority (corporate and otherwise) to own, operate and lease its properties
as presently owned, operated and leased and to conduct its business in the
manner and by the means utilized as of the date hereof. Holdings does not have a
class of stock registered pursuant to Section 12, and is not subject to the
reporting requirements, of the 1934 Act. Holdings owns no voting stock or equity
securities of any other corporation, partnership, association or other entity.
(b) Holdings does not have the right to designate a director, officer or
other management official of (or to consent to changes in directors, officers or
other management officials, or otherwise exercise any controlling influence
over) any for-profit or non-profit corporation, partnership, limited liability
company, joint venture, trust, foundation, or other entity or association.
3.02. Authorization.
(a) Holdings has the requisite corporate power and authority to enter into
this Agreement and to perform its obligations hereunder, subject to the
fulfillment of the conditions precedent set forth in Section 6.02(d) and (e)
hereof. Holdings is not aware of any reason why the approvals set forth in
Section 6.02(e) will not be received in a timely manner and without the
imposition of a condition, restriction or requirement of the type described in
Section 6.02(e). This Agreement, and its execution and delivery by Holdings, has
been duly authorized and approved by the Board of Directors of Holdings and,
assuming due execution and delivery by Blue River, constitutes a valid and
binding obligation of Holdings, subject to the fulfillment of the conditions
precedent set forth in Section 6.02 hereof, and is enforceable in accordance
with its terms, except to the extent limited by general principles of equity and
public policy and by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium,
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readjustment of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights.
(b) Neither the execution of this Agreement nor consummation of the
Transactions: (i) conflicts with or violates the organizational documents of
Holdings; (ii) conflicts with or violates any local, state, federal or foreign
law, statute, ordinance, rule or regulation (provided that the approvals of or
filings with applicable government regulatory agencies or authorities required
for consummation of the Transactions are obtained) or any court or
administrative judgment, order, injunction, writ or decree; (iii) conflicts
with, results in a breach of or constitutes a default under any note, bond,
indenture, mortgage, deed of trust, license, lease, contract, agreement,
arrangement, commitment or other instrument to which Holdings is a party or by
which Holdings is subject or bound; (iv) results in the creation of or gives any
person, corporation or entity the right to create any lien, charge, claim,
encumbrance or security interest, or results in the creation of any other rights
or claims of any other party (other than Blue River) or any other adverse
interest, upon any right, property or asset of Holdings; or (v) terminates or
gives any person, corporation or entity the right to terminate, accelerate,
amend, modify or refuse to perform under any note, bond, indenture, mortgage,
agreement, contract, lease, license, arrangement, deed of trust, commitment or
other instrument to which Holdings is bound or with respect to which Holdings is
to perform any duties or obligations or receive any rights or benefits.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with a Governmental Authority is required by Holdings in
connection with the execution and delivery of this Agreement and the Transaction
Agreements by Holdings or the consummation by Holdings of the Transactions,
except for such applications, filings, authorizations, orders and approvals as
may be required under HOLA or the regulations of the OTS.
3.03. Litigation and Pending Proceedings.
(a) There are no claims, actions, suits, proceedings, mediations,
arbitrations or investigations pending (or, to the knowledge of Holdings,
threatened) in any court or before any government agency or authority,
arbitration panel or otherwise (nor does Holdings have any knowledge of a
reasonable basis for any claim, action, suit, proceeding, litigation,
arbitration, or investigation) against, by or affecting Holdings, including but
not limited to those which, if successful, would prevent the performance of this
Agreement or the Transaction Agreements, declare the same unlawful or cause the
rescission hereof.
(b) Holdings is not: (i) subject to any outstanding judgment, order, writ,
injunction or decree of any court, arbitration panel or governmental agency or
authority; (ii) presently charged with or, to the knowledge of Holdings, under
governmental investigation with respect to any actual or alleged violations of
any law, statute, rule, regulation or ordinance; or (iii) the subject of any
pending or, to the knowledge of Holdings, threatened proceeding by any
government regulatory agency or authority having jurisdiction over its
respective business, assets, capital, properties or operations.
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3.04. Financing. Holdings has previously disclosed its plans to Blue River for
the Holdings Financing (as defined in Section 5.01 hereof). Holdings has no
reason, as of the date hereof, to believe that any conditions to the Holdings
Financing within Holdings' control will not be satisfied or that the Holdings
Financing will not be made available to Holdings on the Closing Date.
3.05. Broker's, Finder's or Other Fees(a). Except for reasonable fees of
Holdings' attorneys, accountants, employee benefits consultants and investment
bankers, no agent, broker or other person acting on behalf of Holdings or under
any authority of Holdings is or shall be entitled to any commission, broker's or
finder's fee or any other form of compensation or payment from any of the
parties hereto relating to this Agreement and the Transactions. No action has
been taken by Holdings that would give rise to any valid claim against any party
hereto for a brokerage commission, finder's fee or other like payment with
respect to the Transaction.
3.06. Accuracy of Statements Made and Materials Provided to Blue River(a). No
representation, warranty in this Section 3 or other statement made, or any
information provided, by Holdings in this Agreement or the Transaction
Agreements, and no written report, statement, list, certificate, materials or
other written information furnished or to be furnished by Holdings to Blue River
through and including the Effective Time in connection with this Agreement, the
Transaction Agreements or the Transactions, contains or shall contain any untrue
statement of material fact or omits or shall omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they are made and in light of the total mix of
information known to Blue River, not false or misleading.
SECTION 4
COVENANTS OF BLUE RIVER
Blue River covenants and agrees with Holdings as follows:
4.01. [Intentionally Omitted].
4.02. Bank Regulatory Approvals and Actions.
(a) Blue River shall have primary responsibility for the preparation,
filing and costs of all bank regulatory applications required for consummation
of the P&A Transaction. Blue River shall file all such applications with respect
to the P&A Transaction as soon as practicable after the execution of this
Agreement. Blue River shall provide to Holdings and its legal counsel a
reasonable opportunity to review such applications prior to their filing and
shall provide to Holdings and its legal counsel copies of all applications filed
and copies of all material written communications with all state and federal
bank regulatory agencies relating to such applications. Blue River shall proceed
expeditiously, cooperate fully and use its reasonable efforts to procure, upon
terms and conditions reasonably acceptable to Blue River and Holdings, all
consents, authorizations, approvals, registrations and certificates, to complete
all filings and applications and to satisfy all other requirements prescribed by
law which are necessary for consummation of the Transactions on the terms and
conditions provided in this Agreement and the Transaction Agreements at the
earliest possible reasonable date.
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(b) Blue River will proceed expeditiously, cooperate fully and use their
reasonable efforts to assist Holdings in procuring upon reasonable terms and
conditions all consents, authorizations, approvals, registrations and
certificates, in completing all filings and applications and in satisfying all
other requirements prescribed by law which are necessary for consummation of the
Stock Purchase Transaction on the terms and conditions provided in this
Agreement and the Stock Purchase Agreement at the earliest possible reasonable
date.
(c) Any materials or information provided by Blue River and any Blue River
Subsidiary for use by Holdings in any filing with any state or federal
regulatory agency or authority shall not contain any untrue or misleading
statement of material fact and shall not omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances in which
they are made, not false or misleading.
4.03. Press Releases. Blue River shall use reasonable efforts (i) to develop a
joint communications plan with Holdings, (ii) to ensure that all press releases
and other public statements with respect to the Transactions shall be consistent
with such joint communications plan, and (iii) except in respect of any
announcement required by applicable law or by obligations pursuant to any
listing agreement with or rules of NASDAQ, to consult with Holdings before
issuing any press release or, to the extent practical, otherwise making any
public statement with respect to this Agreement or the Transactions. In addition
to the foregoing, Blue River shall not issue any press release or otherwise make
any public statement or disclosure concerning Holdings, their respective
business, financial condition or results of operations without the consent of
Holdings, which consent shall not be unreasonably withheld or delayed.
4.04. Blue River Disclosure Schedule Update. Blue River shall promptly
supplement, amend and update, upon the occurrence of any change prior to the
Effective Time, and as of the Effective Time, the Blue River Disclosure Schedule
with respect to any matters or events hereafter arising which, if in existence
or having occurred as of the date of this Agreement, would have been required to
be set forth or described in the Blue River Disclosure Schedule or this
Agreement and including, without limitation, any fact which, if existing or
known as of the date hereof, would have made any of the representations or
warranties of Blue River contained herein incorrect, untrue or misleading. No
such supplement, amendment or update shall become part of the Blue River
Disclosure Schedule unless Holdings shall have first consented in writing with
respect thereto.
4.05. [Intentionally Omitted].
4.06. Adverse Actions. Blue River shall not, and cause the Blue River
Subsidiaries not to, knowingly take any or inaction that is intended or is
reasonably likely to result in (i) any of its representations and warranties set
forth in this Agreement or any of the Transaction Agreements being or becoming
untrue, subject to the Blue River Disclosure Standard, in any respect at any
time at or prior to the Effective Time, (ii) any of the conditions to the
Transactions set forth in Section 6 not being satisfied, (iii) a material
violation of any provision of this Agreement or any Transaction Agreement or
(iv) a delay in the consummation of the Transactions except, in each case, as
may be required by applicable law or regulation.
10
SECTION 5
COVENANTS OF HOLDINGS
Holdings covenants and agrees with Blue River as follows:
5.01. Holdings Financing. Holdings shall proceed expeditiously and in good faith
to obtain the necessary financing related to the Stock Consideration and in
order to achieve at Holdings and Paramount (following the Effective Time)
regulatory capital levels and ratios on a pro forma basis as reasonably may be
required by the OTS or the FDIC (the "Required Regulatory Capital") on terms and
conditions reasonably acceptable to Holdings (the "Holdings Financing").
5.02. Bank Regulatory Approvals and Actions.
(a) Holdings shall have primary responsibility for the preparation, filing
and costs of all bank regulatory applications required for consummation of the
Stock Purchase. Holdings shall file all such applications with respect to the
Stock Purchase as soon as practicable after the execution of this Agreement.
Holdings shall provide to Blue River and its legal counsel a reasonable
opportunity to review such applications prior to their filing and shall provide
to Blue River and its legal counsel copies of all applications filed and copies
of all material written communications with all state and federal bank
regulatory agencies relating to such applications. Holdings shall proceed
expeditiously, cooperate fully and use its reasonable efforts to procure, upon
terms and conditions reasonably acceptable to Blue River and Holdings, all
consents, authorizations, approvals, registrations and certificates, to complete
all filings and applications and to satisfy all other requirements prescribed by
law which are necessary for consummation of the Stock Purchase Transaction at
the earliest possible reasonable date.
(b) Any materials or information provided by Holdings for use by Blue River
or any Blue River Subsidiary in any filing with any state or federal regulatory
agency or authority shall not contain any untrue or misleading statement of
material fact and shall not omit to state a material fact necessary to make the
statements contained therein, in light of the circumstances in which they are
made, not false or misleading.
5.03. Press Releases. Holdings shall use reasonable efforts (i) to develop a
joint communications plan with Blue River, (ii) to ensure that all press
releases and other public statements with respect to the Transactions shall be
consistent with such joint communications plan, and (iii) to consult with Blue
River before issuing any press release or, to the extent practical, otherwise
making any public statement with respect to this Agreement or the Transactions;
provided, however, that nothing in this Section 5.03 shall prohibit Holdings
from making any announcement required by applicable law. In addition to the
foregoing, Holdings shall not issue any press release or otherwise make any
public statement or disclosure concerning Blue River and its business, financial
condition or results of operations without the consent of Blue River which
consent shall not be unreasonably withheld or delayed.
5.04. [Intentionally Omitted].
11
5.05. Adverse Actions. Holdings shall not knowingly take any or inaction that is
intended or is reasonably likely to result in (i) any of its representations and
warranties set forth in this Agreement or any of the Transaction Agreements
being or becoming untrue, subject to the Holdings Disclosure Standard, in any
respect at any time at or prior to the Effective Time, (ii) any of the
conditions to the Transactions set forth in Section 6 not being satisfied, (iii)
a material violation of any provision of this Agreement or any Transaction
Agreement or (iv) a delay in the consummation of the Transactions except, in
each case, as may be required by applicable law or regulation.
SECTION 6
CONDITIONS PRECEDENT TO THE TRANSACTIONS
6.01. Blue River. The obligations of Blue River to consummate the Transactions
are subject to the satisfaction and fulfillment of each of the following
conditions on or prior to the Closing Date, unless waived in writing by Blue
River:
(a) Representations and Warranties at Closing Date. Each of the
representations and warranties of Holdings contained in this Agreement and the
Transaction Agreements shall, subject to the Holdings Disclosure Standard, be
true and correct at and as of the Closing Date (unless such representation and
warranty specifically speaks as of any other time, in which event such
representation and warranty shall be true and correct as of such other time) as
though such representations and warranties had been made or given on and as of
the Closing Date and Blue River shall have received a certificate signed on
behalf of Holdings by the Chief Executive Officer and the Chief Financial
Officer of Holdings to such effect.
(b) Covenants. Each of the covenants and agreements of Holdings shall have
been fulfilled or complied with in all material respects from the date of this
Agreement through the Closing Date, and Blue River shall have received a
certificate signed on behalf of Holdings by the Chief Executive Officer and the
Chief Financial Officer of Holdings to such effect.
(c) Deliveries at Closing. Blue River shall have received from Holdings at
the Closing (as hereinafter defined) the items and documents, in form and
content reasonably satisfactory to Blue River, set forth in Section 8.02(b)
hereof.
(d) Consents. Blue River or the Blue River Subsidiaries have received any
third party consents necessary to effect the P&A Transaction.
(e) Regulatory Approvals. All regulatory approvals required to consummate
the Transactions shall have been obtained and shall remain in full force and
effect and all statutory waiting periods in respect thereof shall have expired
and no such approvals shall contain any conditions, restrictions or requirements
which the board of directors of Blue River reasonably determines in good faith
would have a Material Adverse Effect on Blue River after the Effective Time on
the present or prospective consolidated financial condition, business or
operating results of Blue River.
12
(f) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of either of the Transactions shall be in effect. There shall not
be any action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to either of the Transactions, by any Governmental
Authority of competent jurisdiction, which makes the consummation of the
Transactions illegal.
6.02. Holdings. The obligations of Holdings to consummate the Transactions are
subject to the satisfaction and fulfillment of each of the following conditions
on or prior to the Closing Date, unless waived in writing by Holdings:
(a) Representations and Warranties at Effective Time. Each of the
representations and warranties of Blue River contained in this Agreement and the
Transaction Agreements shall, subject to the Blue River Disclosure Standard, be
true and correct at and as of the Closing Date (unless such representation and
warranty specifically speaks as of any other time, in which event such
representation and warranty shall be true and correct as of such other time) as
though such representations and warranties had been made or given on and as of
the Closing Date and Holdings shall have received a certificate signed on behalf
of Blue River by the Chief Executive Officer and the Controller of Blue River to
such effect.
(b) Covenants. Each of the covenants and agreements of Blue River shall
have been fulfilled or complied with in all material respects from the date of
this Agreement through the Closing Date, and Holdings shall have received a
certificate signed on behalf of Blue River by the Chief Executive Officer and
the Controller of Blue River to such effect.
(c) Deliveries at Closing. Holdings shall have received from Blue River at
the Closing the items and documents, in form and content reasonably satisfactory
to Holdings, listed in Section 8.02(a) hereof.
(d) Holdings Financing. Holdings shall have received the proceeds of the
Holdings Financing.
(e) Regulatory Approvals. All regulatory approvals required to consummate
the Transactions shall have been obtained and shall remain in full force and
effect and all statutory waiting periods in respect thereof shall have expired.
(f) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of either of the Transactions shall be in effect. There shall not
be any action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to either of the Transactions, by any Governmental
Authority of competent jurisdiction, which makes the consummation of either of
the Transactions illegal.
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SECTION 7
TERMINATION OF TRANSACTIONS
7.01. Manner of Termination. This Agreement, the Transaction Agreements and the
Transactions may be terminated at any time prior to the Effective Time by
written notice delivered by (i) Blue River to Holdings or (ii) Holdings to Blue
River, as follows:
(a) By Blue River or Holdings:
(i) if the Transactions contemplated by this Agreement have not been
consummated by June 30, 2007; provided, however, that a party
hereto in willful breach of or willful default hereunder shall
have no right to terminate this Agreement pursuant to this
Section 7.01(a)(i); or
(ii) if the respective Boards of Directors of Blue River and Holdings
mutually agree to terminate this Agreement.
(b) By Blue River, if:
(i) at any time prior to the Effective Time, Blue River's Board of
Directors so determines, in the event of either:
(A) a breach by Holdings of any representation or warranty
contained herein (other than those breaches that do not have
and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on Holdings),
which breach cannot be or has not been cured within thirty
(30) days after the giving of written notice to Holdings of
such breach; or
(B) a breach by Holdings in any material respect of any of the
covenants or agreements contained herein, which breach
cannot be or has not been cured within thirty (30) days
after the giving of written notice to Holdings of such
breach; or
(ii) an event has occurred or facts or circumstances shall have come
to exist which, directly or indirectly, individually or taken
together with all other facts, circumstances and events, has had,
or is reasonably likely to have, a Material Adverse Effect on
Holdings; or
(iii) [Intentionally Omitted]; or
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(iv) on or after May 31, 2007, in the event that Holdings has failed
to enter into financing commitments for the Holdings Financing
which provide for the consummation of the Holdings Financing
prior to or upon the Closing, after all conditions to Closing set
forth in Section 6 hereof (excluding Section 6.02(d) hereof and
any failure to satisfy 6.02(e) due in whole or in part to not
having the Required Regulatory Capital) have been, or are capable
of being, satisfied and fulfilled (subject to the appropriate
waivers of Blue River).
(c) By Holdings, if:
(i) at any time prior to the Effective Time, Holdings' Board of
Directors so determines, in the event of either
(A) a breach by Blue River of any representation or warranty
contained herein (other than those breaches that do not have
and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on Blue
River), which breach cannot be or has not been cured within
thirty (30) days after the giving of written notice to Blue
River of such breach; or
(B) a breach by Blue River in any material respect of any of
the covenants or agreements contained herein, which breach
cannot be or has not been cured within thirty (30) days
after the giving of written notice to Blue River of such
breach; or
(ii) an event has occurred or facts or circumstances shall have come
to exist which, directly or indirectly, individually or taken
together with all other facts, circumstances and events, has had,
or is reasonably likely to have, a Material Adverse Effect on
Blue River and would reasonably be likely to prevent the
consummation of the Stock Purchase and P&A Transaction; or
(iii) the Board of Directors of Holdings determines that Holdings is
not able to consummate the Holdings Financing.
7.02. Effect of Termination. Upon termination by written notice, this Agreement
shall be of no further force or effect, and there shall be no further
obligations or restrictions on future activities on the part of Blue River or
Holdings and their respective subsidiaries, directors, officers, employees,
agents and shareholders, except as provided in compliance with: (i) the payment
of expenses set forth in Section 9.10 hereof; and (ii) the application of the
Xxxxxxx Money as provided by Section 1.02(c) hereof; provided, however, that
termination will not in any way release a breaching party from liability for any
willful breach of this Agreement giving rise to such termination.
15
SECTION 8
CLOSING
8.01. Closing Date and Place. The closing of the Transactions (the "Closing")
shall take place at the law offices of Xxxxx XxXxxxx LLP, Xxx Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000 at 11:00 a.m., local time, on the date
that the Effective Time occurs (the "Closing Date"), or on such other date
and/or at such other place and time as the parties may agree. The parties shall
use their best efforts to cause the Effective Time to occur, subject to
satisfaction or waiver of all conditions to Closing, on the same date as the
Closing Date.
8.02. Deliveries.
(a) At the Closing, Blue River shall deliver to Holdings the following:
(i) the officers' certificate contemplated by Section 6.02 hereof;
(ii) copies of all approvals by government regulatory agencies
addressed to or obtained by Blue River or any Blue River
Subsidiary that are necessary to consummate the Transactions;
(iii) copies of (A) the resolutions adopted by the Board of Directors
of Blue River certified by the Secretary of Blue River, relative
to the approval of this Agreement and the Stock Purchase
Agreement, and (B) the resolutions of the Board of Directors and
sole shareholder of SCB and Paramount, certified by their
respective Secretaries relative to the approval of the P&A
Agreement;
(iv) an opinion of its counsel dated as of the Effective Time
reasonably acceptable to Holdings and its legal counsel; and
(v) such other documents as Holdings or their respective legal
counsel may reasonably request.
(b) At the Closing, Holdings shall deliver to Blue River the following:
(i) the officers' certificate contemplated by Section 6.01 hereof;
(ii) copies of all approvals by government regulatory agencies
addressed to or obtained by Holdings necessary to consummate the
Transactions;
(iii) copies of the resolutions adopted by the Board of Directors of
Holdings certified by the Secretary of Holdings, relative to the
approval of this Agreement and the Stock Purchase Agreement;
(iv) an opinion of its counsel dated as of the Effective Time
reasonably acceptable to Blue River and its legal counsel; and
16
(v) such other documents as Blue River and its legal counsel may
reasonably request.
SECTION 9
MISCELLANEOUS
9.01. Non-survival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and agreements in this Agreement or the
Transaction Agreements, including any rights arising out of any breach of such
representations, warranties, covenants, and agreements, shall survive the
Effective Time, except for those covenants and agreements contained herein and
therein that by their terms apply or are to be performed in whole or in part
after the Effective Time and the representation and warranty of Blue River
contained in Section 1.4 of the Stock Purchase Agreement with respect to the
ownership of the capital stock of Paramount.
9.02. Binding Effect; Assignment. This Agreement and the Transaction Agreements
and the recitals hereof and thereof shall be binding upon and inure to the
benefit of the respective parties hereto and their respective successors and
assigns; provided, however, that this Agreement and the Transaction Agreements
may not be assigned by any party hereto without the prior written consent of the
other parties hereto and thereto. The representations, warranties, covenants and
agreements contained in this Agreement are for the sole benefit of the parties
hereto and thereto and their successors and assigns, and they shall not be
construed as conferring any rights on any other persons.
9.03. Waiver; Amendment.
(a) The parties to this Agreement and the Transaction Agreements may by an
instrument in writing extend the time for the performance of or otherwise amend
any of the covenants, conditions or agreements set forth in this Agreement and
the Transaction Agreements. Any of the parties hereto or thereto by an
instrument in writing (i) may waive any inaccuracies in the representations or
warranties of the any other party hereto contained in this Agreement or the any
of the Transaction Agreements; (ii) waive the performance by the any other party
hereto or their respective subsidiaries of any of the covenants or agreements to
be performed by it or them under this Agreement or any of the Transaction
Agreements; or (iii) waive the satisfaction or fulfillment of any condition, the
satisfaction or fulfillment of which is a condition to the obligation of the
party so waiving to consummate the Transactions. The waiver by any party hereto
of a breach of or noncompliance with any provision of this Agreement or any of
the Transaction Agreements shall not operate or be construed as a continuing
waiver or a waiver of any other or subsequent breach or noncompliance hereunder.
(b) This Agreement and the Transaction Agreements may be amended, modified
or supplemented only by a written agreement executed by the parties hereto.
17
9.04. Notices. All notices and other communications hereunder or the Transaction
Agreements shall be in writing and shall be sufficiently given if made by hand
delivery, by fax, by overnight courier, or by registered or certified mail
(postage prepaid and return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by it by
like notice):
If to Blue River: with a copy to (which shall not
constitute notice):
Blue River Bancshares, Inc. Xxxxx XxXxxxx LLP
00 Xxxx Xxxxxxxxxx Xxxxxx Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxx 00000-0000
ATTN: Xxxxxxx Xxxxxxx, III ATTN: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
If to Holdings: with a copy to (which shall not
constitute notice):
FirstAtlantic Financial Holdings, Inc. Xxxxxxxx Xxxxxxx, LLP
c/o T. Xxxxxxx Xxxxxxx & Associates, Inc. 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000
Xxxxxxxxxx, Xxxxxxx 00000 ATTN: Xxxxx X. Xxxxxx
ATTN: T. Xxxxxxx Xxxxxxx Telephone: (000) 000-0000
Telephone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
All such notices and other communications shall be deemed to have been duly
given as follows: when delivered by hand, if personally delivered; when
received, if delivered by registered or certified mail (postage prepaid and
return receipt requested); when receipt acknowledged, if faxed; and the next
business day after timely delivery to a recognized overnight courier service, if
delivered by overnight courier.
9.05. Headings. The headings in this Agreement and the Transaction Agreements
have been inserted solely for ease of reference and should not be considered in
the interpretation or construction of this Agreement and the Transaction
Agreements.
9.06. Severability. Any term or provision of this Agreement which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability and, unless the effect of such invalidity or unenforceability
would prevent the parties from realizing the major portion of the economic
benefits of the Transactions that they currently anticipate obtaining therefrom,
shall not render invalid or unenforceable the remaining terms and provisions of
this Agreement or the Transaction Agreements. If any provision of this Agreement
or the Transaction Agreements is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
18
9.07. Counterparts. This Agreement and the Transaction Agreements may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute one and the same instrument.
9.08. Governing Law; Enforcement; Specific Performance; Jury Trial. This
Agreement and the Transaction Agreements shall be governed by and construed in
accordance with the laws of the State of Indiana and applicable federal laws,
without regard to principles of conflicts of law. The parties hereto hereby
agree that all claims, actions, suits and proceedings between the parties hereto
relating to this Agreement or the Transaction Agreements shall be filed, tried
and litigated only in the Circuit or Superior Court of Xxxxxx County, Indiana or
the United States District Court for the Southern District of Indiana. In
connection with the foregoing, the parties hereto consent to the jurisdiction
and venue of such courts and expressly waive any claims or defenses of lack of
personal jurisdiction of or proper venue by such courts. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement or the Transaction Agreements were not performed in accordance with
their specific terms on a timely basis or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or other
equitable relief to prevent breaches of this Agreement or the Transaction
Agreements and to enforce specifically the terms and provisions of this
Agreement or the Transaction Agreements in any court identified above, this
being in addition to any other remedy to which they are entitled at law or in
equity. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY, IN ANY MATTERS (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT OR THE TRANSACTION AGREEMENTS.
9.09. Entire Agreement. This Agreement and the Transaction Agreements and, when
executed and delivered, supersede, terminate and render of no further force or
effect all other prior or contemporaneous understandings, commitments,
representations, negotiations or agreements, whether oral or written, among the
parties hereto relating to the Transactions or matters contemplated herein and
constitutes the entire agreement between the parties hereto, except for the
Confidentiality Agreement, which shall continue in full force and effect
following the date hereof. The parties hereto agree that each party and its
counsel reviewed and revised this Agreement and the Transaction Agreements and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement, the Transaction Agreements or any amendments
or exhibits hereto or thereto.
9.10. Expenses. The parties shall pay their own expenses incidental to the
Transactions.
9.11. Certain References.
(a) Whenever in this Agreement and the Transaction Agreements a singular
word is used, it also shall include the plural wherever required by the context
and vice-versa. Except expressly stated otherwise, all references in this
Agreement and the Transaction Agreements to periods of days shall be construed
to refer to calendar, not business, days. The term "business day" shall mean any
day except Saturday and Sunday when SCB is open for the transaction of business.
19
(b) References contained herein to the knowledge of Blue River or Holdings
shall refer to the actual knowledge of the directors and executive officers of
Blue River or Holdings, and their respective subsidiaries, as the case may be.
20
IN WITNESS WHEREOF, Blue River, Holdings have made and entered into this
Agreement as of the day and year first above written and have caused this
Agreement to be executed, attested in counterparts and delivered by their duly
authorized officers.
BLUE RIVER BANCSHARES, INC.
By: /s/ Xxxxxxx Xxxxxxx, III
------------------------------------
Xxxxxxx Xxxxxxx, III, Chairman and
Chief Executive Officer
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx, Secretary
FIRSTATLANTIC FINANCIAL HOLDINGS, INC.
By: /s/ T. Xxxxxxx Xxxxxxx
------------------------------------
T. Xxxxxxx Xxxxxxx, Chairman
ATTEST:
By: /s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, Secretary
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SCHEDULE OF EXHIBITS
Exhibit A - Form of P&A Agreement
Exhibit B - Form of Stock Purchase Agreement
EXHIBIT A
PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (the "Agreement"), dated as of the
_____ day of __________, 2006, is made and entered into by and between PARAMOUNT
BANK, a federal savings association having its principal office in Lexington,
Kentucky (the "Seller"), and SHELBY COUNTY BANK, a federal savings association
having its principal office in Shelbyville, Indiana (the "Purchaser").
WITNESSETH:
WHEREAS, the Seller owns and operates one (1) banking office located in
Lexington, Kentucky;
WHEREAS, the parent company of each of the Seller and the Purchaser,
together with FirstAtlantic Financial Holdings, Inc. are parties to that certain
Agreement and Plan of Reorganization, dated as of September ___, 2006 (the
"Reorganization Agreement"), which contemplates the transactions provided for in
this Agreement; and
WHEREAS, the Seller desires to sell the Assets (as defined in Section 1.3
hereof) and assign the Assumed Liabilities (as defined in Section 1.5 hereof),
and the Purchaser desires to purchase the Assets and assume the Assumed
Liabilities, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties and mutual agreements and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES; PAYMENT
1.1 IDENTIFICATION OF OFFICE. The Seller presently owns and operates an
office located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000
(the "Office"). The Office is the only Office of the Seller.
1.2 TIME AND PLACE OF CLOSING. The closing of the transactions contemplated
hereby (the "Closing") shall occur at such time and on such date as determined
in the Reorganization Agreement (the "Closing Date"), and shall be effective as
of the Effective Time (as defined in the Reorganization Agreement). The Closing
shall be held at the offices of Xxxxx XxXxxxx LLP in Indianapolis, Indiana or at
such other location as may be mutually agreed to by the parties.
1.3 PURCHASE OF ASSETS. The Seller hereby agrees, subject to Section 1.4
hereof and the other terms and conditions of this Agreement, to sell, transfer,
convey, assign and deliver to the Purchaser, and the Purchaser agrees to
purchase, accept and receive from the Seller, on the Closing Date, the following
assets, properties and rights free and clear of all security interests, liens,
mortgages and encumbrances, except for the security interests, liens, mortgages
and encumbrances that are in favor of the Seller with respect to the Loans or
that arise under applicable law (collectively, the "Assets"):
(a) all loans at their respective outstanding principal amounts plus
all accrued but unpaid interest and fees thereon and related
unamortized origination costs or fees attributed to the Office as
of the close of business on the day immediately preceding the
Closing Date, together with all security interests, liens,
mortgages, guaranties and collateral related thereto, but
excluding all loan loss reserves related thereto, such loans to
be listed on Exhibit 1.3(a) hereto delivered to the Purchaser at
the Closing (collectively, the "Loans");
(b) all customer files relating to the Loans and the Deposit
Liabilities (as defined in Section 1.5), all promissory notes,
loan agreements, security agreements, mortgages, guaranties and
other loan documents relating to the Loans, all signature cards,
account agreements and other deposit account documents relating
to the Deposit Liabilities and all contracts and rental
agreements relating to the Seller's safe deposit box business at
the Office;
(c) all overdrafts associated with all deposit liabilities assumed by
the Purchaser under Section 1.5 hereof;
(d) all right, title and interest in and to the leases of real
property related to the Office (the "Lease"), a copy of which is
set forth on Exhibit 1.3(d) hereto (the "Leased Real Property");
(e) all right, title and interest in and to all personal property,
furniture, fixtures, equipment and ATM machines located at the
Office and owned or leased by the Seller, as listed on Exhibit
1.3(e) hereto (collectively, the "Fixed Assets"), together with
any manufacturer's warranties thereon which are in effect on the
Closing Date and which are assignable to the Purchaser;
(f) all petty, teller, ATM and vault cash maintained at the Office as
of the close of business on the Closing Date, the exact amounts
of which will be certified by the Seller as of the Closing Date;
(g) all rights to the extent assignable in, to and under any vendor
single interest insurance or other insurance on collateral
transferred to the Purchaser with the Loans;
2
(h) subject to Section 1.7 hereof, all safe deposit contracts and
rental agreements for the safe deposit boxes located at the
Office;
(i) the local telephone and fax numbers associated specifically with
the Office;
(j) all trade marks, service marks, trade names, corporate names
(including, without limitation, the names "Paramount" and
"Paramount Bank"), copyrights, medallion program stamps, signs,
logos, URLs, domain names (and associated e-mail addresses),
Internet web sites, proprietary information, stationery, forms,
labels, shipping materials, brochures, advertising and marketing
materials and other similar property or rights owned by, relating
to or referencing the Seller or any of its affiliates;
(k) all routing numbers of the Seller used in connection with the
Deposit Liabilities or the Office;
(l) all computer, networking and data processing equipment, hardware
and software located at the Office, including, without
limitations, servers, workstations, personal computers, CRTs,
printers, routers, modems, network hubs, data storage media,
operating systems, local area networks, custom software and
off-the-shelf software;
(m) all leased telephone systems located at the Office, as identified
on Exhibit 1.3(m) hereto;
(n) all precious metals maintained in the vault of the Office; and
(o) all other assets, properties, claims and rights of the Seller or
any of its affiliates.
1.4 EXCLUDED ASSETS. All assets, properties and rights of the Seller not
expressly included in the Assets are excluded from the transactions contemplated
by this Agreement, including, without limitation, the following (collectively,
the "Excluded Assets"):
(a) cash in the amount of Three Million and No/100 Dollars
($3,000,000.00), plus an amount equal to the accrued interest on
the Three Million and No/100 Dollars ($3,000,000.00) deposit
liability referenced in Section 1.6 of this Agreement;
(b) all minute books, stock records, and corporate seal of the
Seller;
(c) all records of the Seller, except as expressly provided in
Section 1.3(b) of this Agreement;
(d) all rights, title and interest relating to this Agreement; and
(e) such other assets as may be agreed to by the parties.
3
1.5 ASSUMPTION OF LIABILITIES. The Purchaser hereby agrees, subject to
Section 1.6 hereof and the other terms and conditions of this Agreement, that on
and after the Closing Date it shall assume and fully and timely perform,
discharge and pay, in accordance with their respective terms, all of the
liabilities and obligations of the Seller for all periods prior to the Effective
Time, including, but not limited to, the deposit accounts of the Sellers of the
Closing (including, without limitation, all checking, savings, certificate of
deposit, individual retirement, Xxxxx, money market, time deposit, repurchase
agreements and sweep accounts) together with all accrued interest relating to
such deposit accounts (collectively, the "Deposit Liabilities").
The liabilities and obligations described in this Section 1.5 that the
Purchaser hereby agrees to assume and fully and timely perform, discharge and
pay are referred to collectively in this Agreement as the "Assumed Liabilities".
On and after the Closing Date, the Seller shall have no duties,
responsibilities, liabilities or obligations under or with respect to the
Assumed Liabilities.
1.6 EXCLUDED LIABILITIES. The following liabilities and obligations of the
Seller are excluded from the transactions contemplated in this Agreement (the
"Excluded Liabilities"): deposit accounts identified on Exhibit 1.6 in the
aggregate amount of Three Million and No/100 Dollars ($3,000,000.00), plus
accrued interest.
1.7 SAFE DEPOSIT BUSINESS.
(a) On and after the Closing Date, the Purchaser shall assume and
fully and timely perform and discharge all of the Seller's
obligations with respect to the Seller's safe deposit box
business at the Office in accordance with the terms and
conditions of the contracts or rental agreements related to such
safe deposit boxes.
(b) On and after the Closing Date, the Seller shall transfer the
records related to such safe deposit box business to the
Purchaser, and the Purchaser shall maintain and safeguard all
such records and be responsible for granting proper access to and
protecting the contents of the safe deposit boxes at the Office.
1.8 BILLS OF SALE; DEEDS; ASSIGNMENTS; DOCUMENTATION OF ASSUMPTION. On the
Closing Date, the Seller shall deliver to the Purchaser such bills of sale,
deeds, assignments and instruments of transfer, reasonably satisfactory in form
and substance to the Seller and the Purchaser, pursuant to which the Seller will
transfer all of its right, title and interest in and to the Assets to the
Purchaser. On the Closing Date, the Purchaser shall deliver to the Seller such
undertakings and agreements, satisfactory in form and substance to the Seller
and the Purchaser, pursuant to which the Purchaser shall assume and agree to
fully and timely perform, discharge and pay, in accordance with their respective
terms, all of the Assumed Liabilities.
1.9 ASSUMPTION SUBJECT TO CERTAIN TERMS. The liabilities and obligations
being assumed by the Purchaser pursuant to this Agreement shall be assumed
subject to the terms and conditions of the lease, deposit, loan, security,
mortgage and other written agreements relating thereto and all applicable laws,
statutes, rules, regulations and other legal requirements.
4
1.10 PAYMENT. In consideration of the assumption by the Purchaser of the
Assumed Liabilities, the Seller shall transfer the Assets to the Purchaser and
shall pay the Purchaser by wire transfer of immediately available funds on the
Closing Date as shall be agreeable to the parties.
1.11 ALLOCATION OF PURCHASE PRICE. The purchase price for the assets being
purchased and the liabilities being assumed by the Purchaser pursuant to this
Agreement shall be allocated on an allocation schedule to be agreed upon by the
Purchaser and the Seller within thirty (30) days after the Closing Date. This
allocation is intended to comply with the allocation method required by Section
1060 of the Internal Revenue Code of 1986, as amended. The Purchaser and the
Seller shall cooperate to comply with all substantive and procedural
requirements of Section 1060 and any regulations thereunder, and the allocation
shall be adjusted if and to the extent necessary to comply with the requirements
of Section 1060.
1.12 TRANSFER TAXES. The Purchaser shall pay all transfer and conveyance
taxes in connection with the transfer of the Assets to the Purchaser.
ARTICLE II
CERTAIN AGREEMENTS OF PURCHASER AND SELLER
2.1 REGULATORY APPROVALS.
(a) The Purchaser, at its sole obligation and expense, shall, as soon
as practicable following the date of this Agreement, prepare all
applications, as required by applicable law, and file such
applications with the appropriate federal and state regulatory
authorities for approval to purchase the Assets and assume the
Assumed Liabilities, to establish an office at the location of
the Office and to effect in all other respects the transactions
contemplated hereby (the "Governmental Approvals").
(b) The Seller shall, as soon as practicable following the date of
this Agreement, prepare and file with the appropriate federal and
state regulatory authorities notice of its intent to cease
operation of the Office and to consummate the transactions
contemplated hereby and thereafter shall use its reasonable
efforts to obtain any required permission or approval of such
regulatory authorities to cease operating the Office.
2.2 CONVERSION OF ACCOUNTS; TRANSFER AND DELIVERY OF ASSETS AND DEPOSIT
LIABILITIES.
(a) Prior to the Closing Date, the Purchaser shall assure that its
data processing systems are capable of receiving the Assets and
the Deposit Liabilities on the Closing Date.
(b) On the Closing Date, the Seller shall:
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(i) deliver to the Purchaser such of the Assets as shall be
capable of physical delivery;
(ii) execute, acknowledge and deliver to the Purchaser all such
endorsements, assignments, bills of sale, deeds and other
instruments of conveyance, assignment and transfer as, in
the reasonable judgment of the Purchaser, shall be necessary
and appropriate to consummate the sale and transfer of the
Assets to the Purchaser and to vest in the Purchaser the
legal and equitable title to the Assets, free and clear of
all liens and encumbrances, except as otherwise permitted in
this Agreement;
(iii) assign, transfer and deliver to the Purchaser such of the
following records pertaining to the Deposit Liabilities as
exist and are available in whatever form or medium is
maintained by the Seller:
(A) all orders, agreements and contracts between the Seller
and depositors attributed to the Office and records of
similar character, including signature cards; and
(B) all records of account maintained for each depositor
attributed to the Office;
(iv) produce a bank statement for each of the Loans transferred
and Deposit Liabilities assumed and mail, at its expense, a
statement dated as of the day immediately prior to the
Closing Date to the customer with respect to each of the
Deposit Liabilities; and
(v) assign, transfer and deliver to the Purchaser the promissory
notes, security agreements, mortgages and related agreements
and loan files relating to or evidencing all Loans to the
extent the same exist and in whatever form or medium is
maintained by the Seller.
2.3 RETENTION OF AND ACCESS TO FILES AND RECORDS FOLLOWING THE CLOSING
DATE.
(a) The Purchaser agrees that it shall maintain, preserve and safely
keep, for as long as may be required by applicable law and in
accordance with customary business practices, all of the files,
books of account and records relating to the Office (including,
without limitation, the Assets and the Assumed Liabilities) for
the joint benefit of itself and the Seller, and that it shall
permit the Seller and its employees and representatives, at any
reasonable time and at the Seller's expense, to inspect, make
extracts from or copies of any such files, books of account and
records as the Seller shall deem reasonably necessary.
6
(b) In the event that some of the Seller's records concerning the
Deposit Liabilities cannot reasonably be segregated from the
Seller's records regarding accounts not transferred pursuant to
this Agreement, the Seller shall not deliver such records to the
Purchaser but shall maintain, preserve and safely keep such
records for as long as may be required by applicable law. The
Seller shall permit the Purchaser or Purchaser's employees and
representatives, at reasonable times and at the Purchaser's
expense, to inspect, make extracts from or copies of such records
which relate to any such records.
2.4 SAFEKEEPING. The Seller agrees to transfer and deliver to the Purchaser
on the Closing Date all safe deposit box contents, including without limitation,
securities, papers, valuables and other items (collectively, "Safekeeping
Items"), held by the Seller in safekeeping for its customers at any of the
Office, together with all records relating thereto (in whatever form or medium
is maintained by the Seller). The Purchaser agrees to assume, honor and
discharge, from and after the Closing Date, the duties and obligations of the
Seller with respect to such safe deposit boxes and the Safekeeping Items and
shall be entitled to any right or benefit arising from such safekeeping business
from and after the Closing Date. The Purchaser agrees to execute as of the
Closing Date a receipt for such Safekeeping Items.
2.5 EMPLOYEES. The active employees of the Seller who are assigned to the
Office as of the Closing Date (the "Employees") shall, as of the Closing Date,
be terminated by the Seller and become employees-at-will of the Purchaser. The
Purchaser shall be responsible for the filing of Forms W-2 with the Internal
Revenue Service and all required filings with state tax authorities with respect
to wages and benefits paid to each such employee for all periods ending prior to
the Closing Date.
2.6 PAYMENT OF ITEMS AFTER THE CLOSING DATE. Following the Closing Date:
(a) The Purchaser agrees to pay in accordance with applicable law and
customary banking practices all properly drawn and presented
checks, drafts and withdrawal orders presented to the Purchaser
by mail, over the counter or through the check clearing system of
the banking industry by depositors related to the Deposit
Liabilities, whether drawn on the checks, withdrawal or draft
forms provided by the Seller or by the Purchaser, and in all
other respects to discharge, in the usual course of the banking
business, the duties and obligations of the Seller with respect
to the balances due and owing to the depositors with respect to
whom the Purchaser has assumed the Deposit Liabilities.
(b) If any of such depositors, instead of accepting the obligation of
the Purchaser to pay the Deposit Liabilities, shall demand
payment from the Seller for all or any part of any such Deposit
Liabilities, the Seller shall not be liable or responsible for
making such payment.
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2.7 LOAN PAYMENTS AND INFORMATION RECEIVED AFTER THE CLOSING DATE.
(a) Following the Closing Date, the Seller agrees:
(i) to forward promptly to the Purchaser all payments (properly
endorsed without recourse) which are received by the Seller
on or after the Closing Date that relate to the Loans and to
provide sufficient information so that any such payments may
be properly applied to the extent such information is
available to the Seller; and
(ii) to forward promptly to the Purchaser all notices or other
correspondence received on or after the Closing Date that
relate to the Deposit Liabilities, the Loans or any of the
other Assets.
(b) The Purchaser shall be liable for all returned checks
representing payments received by the Seller on or prior to the
Closing Date on any Loan. The Seller shall promptly deliver each
such returned check received by it to the Purchaser, and the
Purchaser shall promptly pay to the Seller the face amount
thereof.
2.8 NOTICES TO CUSTOMERS. The Purchaser, at Purchaser's cost and expense,
shall deliver within fifteen (15) days prior to the Closing Date, or earlier if
required by law, by first class mail, postage prepaid, (a) to each customer
whose deposit account is included in the Deposit Liabilities, written notice
approved by the Seller indicating that such customer's deposit account has been
assumed by the Purchaser and, in addition, furnish each such customer with
instructions to utilize the Purchaser's form of checks and to destroy all unused
checks on the form of the Seller, and (b) to each customer whose loan is
included in the Loans, written notice approved by the Seller indicating that
such customer's loan has been sold and transferred to the Purchaser and
directing that all payments with respect to such loan is required to be paid, on
and after the date of receipt of such notice, to an address specified by the
Purchaser.
2.9 RIGHT TO INTERVENE. In the event that any claim, demand, suit or other
proceeding is instituted or threatened against the Purchaser relating to this
Agreement, the Assets or the Assumed Liabilities, the Seller shall have the
right, at its discretion and expense, to intervene in such matter, and the
Purchaser hereby agrees to give prompt and prior notice thereof to the Seller
and consents to such intervention.
2.10 ASSUMPTION OF RISKS.
(a) On and after the Closing Date, the Seller shall discontinue all
casualty, liability and other insurance coverage maintained with
respect to the Office and the Assets. The Purchaser shall be
solely responsible for all losses and liability claims whatsoever
relating to the Office, the Assets and the Assumed Liabilities
arising on and after the Closing Date.
8
(b) On and after the Closing Date, the Seller shall discontinue
providing any security for persons and property at the Office.
The Purchaser shall be solely responsible and liable for all
liabilities and claims arising out of injury or damage to
persons, property or assets on or at the Office on and after the
Closing Date.
(c) On and after the Closing Date, the Purchaser shall maintain
adequate insurance with respect to the losses described in (a)
and (b) above and otherwise with respect to the operation of the
Office.
2.11 INFORMATION REPORTING.
(a) With respect to the Loans purchased and the Deposit Liabilities
assumed by the Purchaser pursuant to this Agreement, (i) the
Purchaser agrees to report to the customer and to the Internal
Revenue Service (and any state or local taxing authority as
required) all interest and other amounts paid or earned by the
Seller and the applicable customer during the entire year in
which the Closing Date occurs, and (ii) the Seller agrees to
provide the Purchaser with information about the Deposit
Liabilities and the Loans through the close of business on the
day immediately preceding the Closing Date necessary for the
Purchaser to comply with the requirements of this Section 2.11;
and the Seller shall have no responsibility or obligation to
provide such information to any customer or the Internal Revenue
Service or any state or local taxing authority.
(b) The Purchaser shall be responsible for reporting to the customer
and to the Internal Revenue Service (and any state or local
taxing authority) all interest paid or earned on the Deposit
Liabilities and the Loans on or after the Closing Date.
2.12 COOPERATION AND FURTHER ASSURANCES. Each party agrees that on and
before the Closing Date (a) it shall cooperate with the other in accomplishing
the terms and conditions of this Agreement, and (b) at any time and from time to
time after the Closing Date, it shall execute and deliver to the other party
such further instruments, agreements and documents as the other party may
reasonably request to give effect to the transactions contemplated by this
Agreement.
2.13 CONDITION OF ASSETS. The Purchaser has inspected the Fixed Assets and
the Leased Real Property, observed their physical characteristics and existing
conditions and has been afforded the opportunity to conduct such inspection,
investigation and study on and of the Fixed Assets and the Leased Real Property
as it deems necessary for the purpose of acquiring the Fixed Assets and the
Leased Real Property for the Purchaser's intended use. On and after the Closing
Date, the Purchaser hereby waives any and all objections to or claims with
respect to any and all physical characteristics and existing conditions of the
Fixed Assets and the Leased Real Property. The Purchaser further acknowledges
and agrees that the Fixed Assets and the Leased Real Property are to be
transferred, assigned, sold and conveyed to, and purchased and accepted by, the
Purchaser in their present condition "AS IS, WHERE IS" and without any
representations or warranties other than as expressly stated in this Agreement.
9
2.14 CUSTOMERS.
(a) Immediately following the Closing, the Purchaser shall take all
actions necessary to effectuate its succession to and purchase
and assumption of the Assets and the Assumed Liabilities;
provided, however, that the Purchaser understands and agrees that
the Seller does not make in this Agreement, and has not otherwise
made, any representation, warranty, covenant, agreement or
assurance that any of the customers attributed to the Office will
become or continue to be customers of the Purchaser, the same
being at the sole discretion of such customers.
(b) The Purchaser understands and agrees that the Seller does not
make in this Agreement, and has not otherwise made, any
representation, warranty, covenant, agreement or assurance with
respect to or relating in any manner to the credit risk or
creditworthiness of any obligor or guarantor under, or the
collectability of, any of the Loans or the value of any
collateral, chattel or asset securing any of the Loans.
2.15 FUTURE FILINGS AND RECORDINGS. Following the Closing, the Purchaser
shall, at its sole cost and expense, promptly make all filings and recordings
with and otherwise take all other actions with respect to all governmental
agencies or authorities and recorder's offices required by law or as the
Purchaser may deem necessary or advisable to reflect its purchase of the Assets
and assumption of the Assumed Liabilities and to reflect the Purchaser as the
holder of all promissory notes and the secured party with respect to all liens,
security interests, mortgages, certificates of title and other loan documents
relating to the Loans.
2.16 CERTAIN WITHHOLDING. On or before the Closing Date, the Seller shall
deliver to the Purchaser a list of all customers who have received "B" or "C"
notices issued by the Internal Revenue Service (the "IRS") relating to the
Deposit Liabilities. On and after the Closing Date, the Seller shall promptly
deliver to the Purchaser (a) any and all similar notices regarding the Deposit
Liabilities received from the IRS, and (b) all notices received from the IRS
releasing any governmental agency restrictions on such Deposit Liabilities. Any
amounts required by any governmental agency to be withheld from any Deposit
Liabilities (the "Withholding Obligations") and any related penalties imposed by
any governmental agency will be handled as follows:
(a) Any Withholding Obligation required to be remitted to the
appropriate governmental agency on or prior to the Closing Date
shall be withheld and remitted by the Seller, and any other
Withholding Obligation withheld by the Seller prior to the
Closing Date also shall be remitted by the Seller to the
appropriate governmental agency on or prior to the time due;
(b) Any Withholding Obligation required to be remitted to the
appropriate governmental agency after the Closing Date and not
withheld as set forth in Section 2.16(a) above shall be withheld
and remitted by the Purchaser on or prior to the time such
Withholding Obligation is due. Within five (5) days of receipt of
any such notice by the Seller, the Seller shall notify
10
the Purchaser, and the Purchaser shall comply with the applicable
notification requirements;
(c) Any penalties described on "B" notices from the IRS or any
similar penalties which relate to the Deposit Liabilities shall
be paid by the Seller promptly upon receipt of the notice,
providing such penalty assessment resulted from the Seller's
acts, policies or omissions prior to the Closing Date and any
efforts to reduce such penalties shall be the responsibility of
the Seller; and
(d) Any penalties assessed due to information missing from
information filings regarding the Deposit Liabilities which were
due prior to the Closing Date, including without limitation 1099
forms, shall be paid by the Seller promptly upon receipt of the
notice providing such penalty assessments resulting from the
Seller's acts, policies or omissions, and any efforts to reduce
such penalties shall be the responsibility of the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to cause the Purchaser to enter into this Agreement, the
Seller hereby represents and warrants to the Purchaser, as follows:
(a) The Seller is a federal savings association duly organized,
validly existing and in good standing under the laws of the
United States of America. The Seller is subject to primary
regulatory supervision and examination by the OTS. The Seller has
full power and authority (corporate and otherwise) to own,
operate and lease its properties as presently owned, operated and
leased and to conduct its business in the manner and by the means
utilized as of the date hereof.
(b) The Seller has the requisite corporate power and authority to
authorize to enter into this Agreement and to perform its
obligations hereunder, subject to the fulfillment of the
conditions precedent provident by Article V hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to cause Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller, as follows:
(a) The Purchaser is a federal savings association duly organized,
validly
11
existing and in good standing under the laws of the United States
of America. The Purchaser is subject to primary regulatory
supervision and examination by the OTS. The Purchaser has full
power and authority (corporate and otherwise) to own, operate and
lease its properties as presently owned, operated and leased and
to conduct its business in the manner and by the means utilized
as of the date hereof.
(b) The Purchaser has the requisite corporate power and authority to
authorize to enter into this Agreement and to perform its
obligations hereunder, subject to the fulfillment of the
conditions precedent provident by Article V hereof.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of the parties to consummate the transactions contemplated
by this Agreement are conditioned upon the satisfaction, on or before the
Closing Date, of each of the conditions set forth in Section 6 of the
Reorganization Agreement (other than conditions relating solely to the delivery
of documents dated as of the Closing Date, and conditions that may be waived
pursuant to applicable law and have been waived by the party entitled to the
benefit thereof).
ARTICLE VI
TERMINATION
This Agreement and the transactions contemplated hereby shall be terminated
in the event the Reorganization Agreement is terminated pursuant to Section 7
thereof.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE PURCHASER. Following the Effective Time, the
Purchaser agrees to reimburse, indemnify, defend, and hold harmless the Seller
from, and against each and every Loss incurred by the Seller relating to any
Assumed Liability incurred in connection with or in any way arising out of or
related to the business of the Seller or any of the operations or activities of
the Seller for all periods prior to the Effective Time.
12
7.2 NOTICE AND OPPORTUNITY TO DEFEND THIRD PARTY CLAIMS. Promptly after (a)
receipt by the Seller of notice of the assertion of any claim against such party
by a Person (as defined below) not a party to this Agreement or (b) the
discovery by the Seller of any Loss giving rise to indemnification hereunder, in
each case with respect to which the Seller expects to make a request for
indemnification hereunder, the Seller shall give Purchaser written notice
describing such Loss in reasonable detail and an estimate of the amount thereof
(an "Indemnification Notice"). If the Seller fails to give the Indemnification
Notice in a timely manner and the Purchaser is materially prejudiced in its
defense by such failure, the Purchaser's liability in respect of such Loss shall
be reduced to the extent of such prejudice. For purposes of this Agreement, the
term "Person" shall mean any natural person, organization, firm, business,
proprietorship, joint venture, corporation, limited liability company,
partnership, association, trade group, trust, or other entity and any
governmental agency or authority.
Except as otherwise provided in this Article VII, the Purchaser shall have
the right, at its option, to defend, at its own expense and through counsel of
its own choosing, any such claim involving the asserted Loss of the Seller as to
which the Purchaser shall have acknowledged its obligation to indemnify the
party seeking indemnification hereunder. If counsel is not selected by the
Purchaser within thirty (30) days of any Indemnification Notice, then the Seller
may select counsel to defend any such claim and, in such event, the Purchaser
shall be responsible for and pay all attorney fees, costs, and expenses of such
counsel and all Losses arising from or relating to such claim, and the Purchaser
shall no longer be entitled to select counsel with respect to such claim.
If the Purchaser shall undertake to defend a claim asserted by a Person not
a party to this Agreement, it shall give a notice (a "Defense Election Notice")
to the Seller of its intention to do so within twenty (20) business days of the
Indemnification Notice to which it relates.
Whether or not the Purchaser does choose so to defend such claim, the
parties hereto shall cooperate in the defense thereof and shall furnish such
records, information, and testimony and attend such conferences, discovery
proceedings, hearings, trials, and appeals as may be reasonably requested in
connection therewith. So long as the Purchaser is defending in good faith any
such claim, the Seller shall not compromise or settle such claim without the
prior written consent of the Purchaser, which consent shall not be unreasonably
withheld. The Seller shall have the right at its own expense to participate in
the defense of such asserted Loss.
Notwithstanding anything herein to the contrary, if the Purchaser does not
give a Defense Election Notice within twenty (20) business days of the
Indemnification Notice, the Seller shall be free, in its sole discretion, to
defend, compromise, or settle the claim for which indemnification is sought, and
the Purchaser shall pay all Losses incurred by the Seller arising from or
relating to such Losses.
7.3 NON-THIRD PARTY CLAIMS, COSTS, AND EXPENSES. If any Indemnification
Notice delivered pursuant to Section 7.2 hereof does not relate to a Loss or the
commencement of any action or proceeding by a third-party, the Purchaser shall
promptly pay to the Seller the full amount of the Loss set forth in such notice,
unless the Loss is disputed by the Purchaser. In any case where the Purchaser is
obligated to pay costs or other expenses, the Purchaser shall promptly pay to
the Seller, upon the request of the Seller, the amount of such costs or
expenses.
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7.4 DURATION. All indemnification claims against the Purchaser under this
Article VII must be made by the close of business on the date which is six (6)
years following the Closing Date.
Once a claim for indemnification hereunder has been timely made, the
indemnification obligations of the Purchaser shall remain in full force and
effect and binding upon each of them, notwithstanding that the periods of time
specified in this Section 7.4 have expired.
7.5 INDEMNIFICATION LIMITATIONS. Notwithstanding any other provisions of
this Agreement to the contrary, in no event shall the Seller be, under or in
respect of this Agreement, entitled to recover any indirect, punitive, special,
exemplary or consequential damages (other than indirect, punitive, special,
exemplary or consequential damages which are paid to third parties), damages for
lost profits, damages for diminution in value of the Seller or damages computed
on a multiple of earnings or similar basis.
7.6 DEFINITIONS. As used in this Agreement, "Loss" and "Losses" mean any
and all actual losses, claims, demands, damages, awards, liabilities,
obligations, judgments, settlements, orders, fines, penalties, taxes, interest,
forfeitures, costs, and expenses (including, without limitation, reasonable
attorney fees). For purposes of this Article VII, the term "Seller" shall
include the officers, directors, agents and affiliates of the Seller.
ARTICLE VIII
MISCELLANEOUS
The parties acknowledge and agree that the miscellaneous provisions set
forth in Section 9 of the Reorganization Agreement shall be applicable to this
Agreement.
* * *
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IN WITNESS WHEREOF, the parties hereto have made, entered into, executed
and delivered this Agreement as of the day and year first above written.
SHELBY COUNTY BANK
By:
------------------------------------
Xxxxx X. Xxxxxxx, President and
Chief Executive Officer
ATTEST:
By:
---------------------------------
D. Xxxxxx Xxxxxxx, Secretary
PARAMOUNT BANK
By:
------------------------------------
Xxxx X. Xxxxxx, President and
Chief Executive Officer
ATTEST:
By: , Secretary
---------------------------------
15
EXHIBIT B
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") made as of this ____ day of
__________, 2006, by and between BLUE RIVER BANCSHARES, INC. ("Blue River") and
FIRSTATLANTIC FINANCIAL HOLDINGS, INC. ("Holdings");
WITNESSETH:
WHEREAS, Holdings is a Florida corporation, with its principal office
located in Jacksonville, Florida;
WHEREAS, Blue River is an Indiana corporation with its principal office
located in Shelbyville, Shelby County, Indiana;
WHEREAS, Blue River is the sole owner of all of the outstanding capital
stock (the "Shares") of Paramount Bank ("Paramount");
WHEREAS, Blue River and Holdings are parties to that certain Agreement and
Plan of Reorganization, dated as of September ___, 2006 (the "Reorganization
Agreement"), which contemplates the transaction provided for in this Agreement;
WHEREAS, pursuant to the terms of this Agreement, Blue River desires to
sell and Holdings desires to acquire from Blue River all of the Shares (as
defined in Section 1.1 hereof) for the Purchase Price (as set forth in Section
1.3); and
WHEREAS, the Boards of Directors of the parties hereto have determined that
it is in the best interests of their respective corporations and the
shareholders or stockholders, as the case may be, thereof to consummate the
transactions provided for herein and have approved this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
ARTICLE I
THE STOCK PURCHASE TRANSACTION
1.1 CAPITALIZATION.
(a) The authorized capital stock of Paramount consists of 10,000 shares of
common stock, $1.00 par value, of which, as of the date hereof, 5,000 shares
were issued and outstanding, all of which shares are validly issued, fully paid
and nonassessable, and have not been issued in violation of any pre-emptive
rights of any present or former shareholder of Paramount (such issued and
outstanding shares are referred to herein as the "Shares"). All of the Shares
are owned by Blue River free and clear of all liens, pledges, charges, claims,
encumbrances, restrictions, security interests, options and pre-emptive rights
and of all other rights or claims of any other person, corporation or entity
with respect thereto. Except as previously described in this Section 1.1,
Paramount has no capital stock authorized, issued or outstanding, and has no
intention or obligation to authorize or issue any other capital stock or any
additional shares of its common stock.
(b) There are no options, warrants, commitments, calls, puts, agreements,
understandings, arrangements or subscription rights relating to any Shares, or
any securities convertible into or representing the right to purchase or
otherwise acquire any common stock or debt securities of Paramount, by which
Paramount is or may become bound. Paramount does not have any outstanding
contractual or other obligation to repurchase, redeem or otherwise acquire any
of the Shares.
1.2 SALE OF STOCK. At the Closing (as hereinafter defined), Blue River
shall sell, transfer, convey, assign and deliver to Holdings and Holdings shall
purchase, acquire and accept from Blue River the Shares upon the terms and
subject to the conditions set forth herein (hereinafter referred to as the
"Stock Purchase Transaction").
1.3 PURCHASE PRICE.
(a) In consideration of the sale and the transfer of the Shares by Blue
River to Holdings, at the Closing, Holdings shall pay to Blue River a total sum
equal to One Million Six Hundred Seventy-Five Thousand Dollars ($1,675,000.00)
(the "Stock Purchase Consideration"), payable by wire transfer of immediately
available funds to Blue River. The Xxxxxxx Money (as defined in the
Reorganization Agreement) received by Shelby County Bank shall be credited
against the Stock Purchase Consideration.
(b) The entire Purchase Price shall be allocated to the Shares.
(c) Holdings shall pay the Purchase Price by wire transfer of immediately
available funds to Blue River only upon Blue River's delivery to Holdings of
stock certificates representing the Shares, which certificates shall be duly
endorsed in blank or be accompanied by duly executed stock powers.
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(d) No commission shall be charged to any party or collected by any party
with respect to the transactions contemplated by this Agreement.
1.4 REPRESENTATIONS OF THE PARTIES. Blue River hereby represents and
warrants to Holdings, which representations and warranties shall not survive the
Effective Time, that the representations and warranties of Blue River with
respect to Blue River in the Reorganization Agreement are true and correct on
the date hereof. Blue River further represents and warrants to Holdings, which
representation and warranty shall survive the Effective Time, that, immediately
prior to the receipt of the Purchase Price from Holdings, Blue River will have
good and marketable title to the Shares, the absolute right to sell, assign and
transfer the same to Holdings free and clear of all liens, pledges, claims or
encumbrances, and to vest full and absolute title to the Shares in Holdings.
Holdings hereby represents and warrants to Blue River, which representations and
warranties shall not survive the Effective Time, that its representations and
warranties in the Reorganization Agreement are true and correct on the date
hereof.
1.5 NECESSARY ACTS. Each of the parties hereto represents and warrants that
they will take or have taken prior to consummation of the purchase of the Shares
any and all reasonable action, including the execution of any required
documents, required to carry out the provisions of this Agreement.
1.6 THE CLOSING. Upon the terms and subject to the conditions specified in
this Agreement, unless otherwise mutually agreed to by the parties hereto, the
parties shall cause the Stock Purchase Transaction to become effective at the
Effective Time (as defined in the Reorganization Agreement). The closing of the
Stock Purchase Transaction (the "Closing") shall take place at the law offices
of Xxxxx XxXxxxx LLP, Xxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx
00000 at 11:00 a.m., local time, on the date that the Effective Time occurs (the
"Closing Date"), or on such other date and/or at such other place and time as
the parties may agree.
1.7 PAYMENT OF PURCHASE PRICE AND DELIVERY OF SHARES. Upon payment by
Holdings of the Purchase Price, Blue River shall deliver the Shares to Holdings
properly endorsed in blank or accompanied by duly executed stock powers so as to
make Holdings the sole owner thereof.
1.8 CONDITIONS PRECEDENT TO CLOSING. The consummation of the purchase and
sale of the Shares is conditioned upon the satisfaction, on or before the
Closing Date, of the conditions set forth in Section 6 of the Reorganization
Agreement (other than the conditions relating solely to the delivery of
documents dated as of the Closing Date, and conditions that may be waived
pursuant to applicable law and have been waived by the party entitled to the
benefit thereof) and the distribution by Paramount to Blue River of any capital
(i.e., any amounts in excess of liabilities) of Paramount prior to consummation
of the Stock Purchase Transaction.
1.9 TERMINATION OF AGREEMENT. This Agreement and the transactions
contemplated hereby shall be terminated in the event the Reorganization
Agreement is terminated pursuant to Section 7 thereof.
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ARTICLE II
MISCELLANEOUS
2.1 GENERAL. The parties acknowledge and agree that the miscellaneous
provisions set forth in Section 9 of the Reorganization Agreement shall be
applicable to this Agreement.
2.2 PASSAGE OF TITLE. Legal title, equitable title and risk of loss with
respect to the Shares shall not pass to Holdings until the Shares are
transferred at the Closing, which transfer, once it has occurred, shall be
considered effective for tax, accounting and other computational purposes as of
the Effective Time.
IN WITNESS WHEREOF, Holdings and Blue River have executed this Agreement as
of the ____ day of _________, 2006.
FIRSTATLANTIC FINANCIAL HOLDINGS, INC.
By:
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T. Xxxxxxx Xxxxxxx, Chairman
BLUE RIVER BANCSHARES, INC.
By:
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Xxxxxxx Xxxxxxx, III, Chairman,
Chief Executive Officer and
President
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