AMENDMENT NO. 1 TO PURCHASE AND ASSUMPTION AGREEMENT
Exhibit
2.1
AMENDMENT
NO. 1
TO
PURCHASE
AND ASSUMPTION AGREEMENT
THIS
AMENDMENT NO. 1 TO PURCHASE AND ASSUMPTION AGREEMENT (this “Amendment”) is
entered into as of May 27, 2009, by and among First Financial Bank, N.A.,
Hamilton, Ohio (“Buyer”), Peoples
Community Bank, West Xxxxxxx, Ohio (“Seller”), and Peoples
Community Bancorp, Inc., a Maryland corporation (“Seller
Parent”).
Capitalized
terms used herein but not defined herein shall have the meanings ascribed to
them in that certain Purchase and Assumption Agreement, dated May 15, 2009, by
and among Buyer, Seller and Seller Parent (the “Agreement”).
RECITALS
WHEREAS, Section 24 of the Agreement
provides for the amendment of the Agreement in accordance with the terms set
forth therein;
WHEREAS, Buyer, Seller and Seller
Parent desire to amend the Agreement as set forth below; and
WHEREAS,
the respective boards of directors of each of Buyer, Seller and Seller Parent
have (i) approved and declared advisable the Agreement as amended by this
Amendment, and the transactions contemplated by the Agreement as amended by this
Amendment, and (ii) determined that the transactions contemplated by the
Agreement as amended by this Amendment are fair to, and in the best interest of,
their respective entities and stockholders.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, Buyer, Seller and Seller Parent each do hereby agree as
follows:
1. Termination
of Agreement. Section 25(j) of
the Agreement is hereby amended and restated in its entirety to read as
follows:
“By
Seller, if the aggregate amount of the Loans as of the Closing Date does not
equal or exceed $250 million.”
2. Specific
Performance.
Section 34 of the Agreement is hereby supplemented by the addition of the
following sentence at the end of said Section:
“Any
requirements for the securing or posting of any bond with respect to any such
remedy is hereby waived.”
3. Confidentiality. Section 38 of the
Agreement is hereby amended and restated in its entirety to read as
follows:
“All
information disclosed or furnished by one party to another, whether orally or in
writing, in connection with this Agreement and Buyer’s due diligence examination
of Seller shall be deemed to be proprietary and confidential information of the
disclosing party. The receiving party agrees not to disclose such
information to any third party other than its representatives or employees or,
upon the advice of its counsel, as may be required by Legal Requirement or as
necessary to obtain the Regulatory Approvals or to comply with the federal
securities laws, or as otherwise contemplated in this Agreement or the exhibits,
annexes and schedules hereto. In connection with any such disclosure,
the disclosing party shall give the other party as much prior notice to the
other party as reasonably practicable. Regardless of whether Closing occurs
hereunder, each party agrees that it shall not use or disclose, and shall cause
its Affiliates not to use or disclose the proprietary or confidential
information of the other party for any purpose, including the solicitation of
customers or business of the other party, for a period of two (2)
years.”
4. Termination
Fee. Section 39
of the Agreement is hereby amended and restated in its entirety to read as
follows:
“(a)
Seller shall pay $2,000,000 (the “Termination Fee”) to
Buyer in the event that (i) Buyer terminates this Agreement pursuant to Section
25(f), or (ii) Buyer terminates this Agreement pursuant to Section 25(c) and
Seller or Seller Parent subsequently enters into an agreement providing for, or
consummates, an Alternative Transaction. Upon any of the events above, the
payment of the amounts in this Section 39 shall be as promptly as reasonably
practicable (in any event, within two (2) Business Days following such
termination), by wire transfer in immediately available funds to an account
specified by Buyer in writing to Seller.
(b)
Seller shall pay actual and documented fees and expenses of Buyer relating to
the execution and performance of this Agreement (including reasonable attorneys’
fees) if Buyer terminates this Agreement pursuant to Section 25(b); provided,
however, that if Seller or Seller Parent subsequently enters into an
agreement providing for, or consummates, an Alternative Transaction, then Seller
shall also pay the Termination Fee to Buyer with the amount of such expenses
previously paid by Seller to Buyer under this Section 39(b) applied as a credit
toward the payment by Seller of the amount of the Termination Fee.
(c)
Seller shall pay actual and documented fees and expenses of Buyer relating to
the execution and performance of this Agreement (including reasonable attorneys’
fees) if Buyer terminates this Agreement (i) pursuant to Sections 25(g), or (ii)
pursuant to Section 25(h) and Seller or Seller Parent subsequently enters into
an agreement providing for, or consummates, an Alternative
Transaction.
(d)
Seller acknowledges that the agreements contained in this Section 39 are an
integral part of the transactions contemplated by this Agreement, that, without
these agreements, Buyer would not enter into this Agreement and the amounts
payable pursuant to Sections 39(a), 39(b) and 39(c) are not
liquidated damages. Buyer may only recover against Seller or Seller Parent under
one of Sections
39(a), 39(b) or 39(c), even when more
than one provision may be applicable, and the decision to recover against Seller
and/or Seller Parent under Section 39 and the
subsequent decision regarding under which of Sections 39(a), 39(b) or 39(c) to recover
shall be in Buyer’s sole and absolute discretion. Upon the occurrence of any of
the events set forth in Sections 39(a), 39(b) or 39(c), Buyer shall be
entitled to receive payment of the amounts pursuant to those sections, as well
as, for any damages actually incurred by Buyer in excess of payments received by
Buyer pursuant to Sections 39(a), 39(b) or 39(c), as the case
may be, in the event Buyer, in its sole and absolute discretion, elects to
recover against Seller and/or Seller Parent under Section 39. If Buyer
seeks its remedies as set forth in this Section 39 of the
Agreement, and Seller and/or Seller Parent pays the amounts owing to Buyer under
this Section
39, then Buyer will not have any right, equitable or otherwise, to
require or otherwise compel Seller or Seller Parent to consummate the
transactions contemplated by this Agreement. For the avoidance of doubt, the
amount of damages that Buyer may recover from Seller and/or Seller Parent
pursuant to this Section 39 shall not
be governed or limited by Section 20 of this
Agreement, which Section 20 only
applies to claims for indemnification made by Buyer, Seller or Seller Parent, if
any, made by Buyer, Seller or Seller Parent following the Closing provided the
Closing occurs.
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(e)
If Seller fails to promptly pay any amount when due in accordance with the
applicable requirements of Sections 39(a), 39(b) and 39(c), and, in order
to obtain such payments Buyer commences a suit that results in a judgment
against Seller or Seller Parent for such amount, Seller shall pay to Buyer its
costs and expenses (including reasonable attorney’s fees) in connection with
such suit.”
5. Exclusive
Dealing. Section 40 of the
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a)
During the period from the date of this Agreement to the earlier of the Closing
Date or the termination of this Agreement, neither Seller, Seller Parent nor any
of their Affiliates or representatives shall take any action to, directly or
indirectly, encourage, initiate, or otherwise engage in discussions or
negotiations with, or provide any non-public information to, any Person other
than Buyer and its Affiliates and representatives concerning an Alternative
Transaction. Seller and Seller Parent will promptly (but in no event
later than twenty-four (24) hours) communicate to Buyer the terms of any
proposal or inquiry that they or any of their Affiliates or representatives may
receive in writing in respect of any Alternative Transaction, or of any such
negotiations or discussions being sought to be initiated with Seller, Seller
Parent or any of their Affiliates or representatives and the identity of such
third party initiating any such proposal, inquiry, discussion or negotiation.
The obligations of Seller and Seller Parent in this Section 40(a) shall not
apply to any merger, acquisition, stock purchase or asset purchase or similar
transaction that does not include the Assets or Liabilities, and Seller and
Seller Parent shall not have any restriction in pursuing such transaction(s) at
any time.
(b)
Seller and Seller Parent shall ensure their respective representatives are aware
of the restrictions described in this Section 40 as reasonably necessary to
avoid violations thereof. It is understood that any violation of the
restrictions set forth in this Section 40 by any representative of Seller or
Seller Parent shall be deemed to be a breach of this Section 40 by Seller or
Seller Parent, as the case may be.”
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6. ANNEX I - Definitions.
The definition of “Deposit Premium” is
hereby amended and restated in its entirety to read as follows:
“Deposit Premium”
shall mean the product of 5.0% times the total outstanding
balance of the Premium-Based Deposits as of the Closing Date.
7. References to the
Agreement. Subject to Paragraph 9 of this Amendment, after
giving effect to this Amendment, each reference in the Agreement to “Agreement”,
“hereof”, “hereunder” or words of like import referring to the Agreement shall
refer to the Agreement as amended by this Amendment and all references in the
Seller Disclosure Schedules to “the Agreement” shall refer to the Agreement as
amended by this Amendment.
8. Date
References. All references in the Agreement and the Seller
Disclosure Schedules to “the date hereof”, “the date of this Agreement” or words
of like import shall remain as references to May 15, 2009.
9. General Provisions. The
provisions of Sections 22-24 and 26-37 of the Agreement shall apply mutatis mutandis to this
Amendment, and to the Agreement as modified by this Amendment, taken together as
a single agreement, reflecting the terms therein as modified
hereby.
10. No
Further Amendment. Except as
expressly amended hereby, the Agreement is in all respects ratified and
confirmed and all the terms, conditions, representations, warranties, covenants
and provisions thereof shall remain in full force and effect in accordance with
their respective terms. This Amendment is limited precisely as written and shall
not be deemed to be an amendment to any other term or condition of the Agreement
or any of the schedules, agreements or other documents referred to therein,
including but not limited to, the Seller Disclosure Schedules, or any of the
documents referred to therein or otherwise affect or operate as a waiver or
relinquishment of any of the rights of any party under any of them. Except as
expressly amended hereby, this Amendment does not constitute a waiver, amendment
or modification of any condition or other provision of the
Agreement. Nothing herein shall
affect, modify or limit any waiver or consent granted by any party pursuant to
the Agreement. Any such waiver or consent, if any, granted prior to the date
hereof remains in full force and effect.
11. Representations and
Warranties of Buyer. Buyer represents and warrants that (i) it has the
power and authority to execute and deliver this Amendment; (ii) the execution,
delivery and performance by Buyer of this Amendment have been duly and validly
authorized by all necessary action on the part of Buyer, and no other
proceedings other than those previously taken or conducted on the part of Buyer
are necessary to approve and authorize this Amendment; and (iii) the Board of
Directors of Buyer has (A) determined that it is in the best interests of Buyer
to enter into this Amendment, and (B) approved the execution, delivery and
performance of this Amendment and the consummation of the transactions
contemplated hereby.
12. Representations and
Warranties of Seller and Seller Parent. Seller and Seller Parent each
represent and warrant that (i) it has the power and authority to execute and
deliver this Amendment; (ii) the execution, delivery and performance by it of
this Amendment have been duly and validly authorized by all necessary action on
the part of each of Seller and Seller Parent, and no other proceedings other
than those previously taken or conducted on the part of Seller and Seller
Parent, as applicable, are necessary to approve and authorize this Amendment,
and (iii) the Board of Directors of Seller and Seller Parent has (A) determined
that it is in the best interests of Seller and Seller Parent, as applicable, to
enter into this Amendment, and (B) approved the execution, delivery and
performance of this Amendment and the consummation of the transactions
contemplated hereby.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, Buyer, Seller and Seller Parent have caused this Amendment to
be signed by their respective officers thereunto duly authorized as of the date
first written above.
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FIRST
FINANCIAL BANK, N.A
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By:
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/s/Xxxxxx
X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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President
and Chief Executive Officer
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PEOPLES
COMMUNITY BANK
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By:
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/s/Xxxxx
X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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President
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PEOPLES
COMMUNITY BANCORP, INC.
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By:
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/s/Xxxxx
X. Xxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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President
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