EXHIBIT A
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT ("Stock Purchase Agreement" or "Agreement")
dated as of April 21, 1995, between CITIBANK, N.A. (the "Seller"), a national
banking association, and XXXXXXXX X. XXXXXXXX (the "Purchaser").
W I T N E S S E T H
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WHEREAS, the Seller has made a loan (the "Loan"), pursuant to a Loan
Agreement ("Loan Agreement") dated August 24, 1988, to Xxxx X. Xxxxxxx, the X.X.
Xxxxxxx Trust, Xxxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx and the Wynmark
Trust (collectively, "Borrowers");
WHEREAS, payment of the Loan is secured by the pledge by the Borrowers
to the Seller of 203,038 shares (the "Shares") of the common stock, par value
$10.00 per share ("Bancorp Common Stock") of Xxxxxxx Xxxxx National Bancorp,
Inc. ("Bancorp");
WHEREAS, one or more events of default have occurred and are
continuing under the Loan Agreement;
WHEREAS, the Seller has, or will have as of the Initial Closing (as
defined in Section 2.1(a) hereof), full right, power and authority to sell,
pursuant to Section 9-504 of the New York Uniform Commercial Code ("UCC"), at
least 191,932 of the Shares to Purchaser;
WHEREAS, the Seller wishes to sell all of the Shares to Purchaser, and
Purchaser wishes to purchase and acquire, in a UCC sale, all of the Shares from
the Seller (the "Acquisition"), all on the terms set forth herein; and
WHEREAS, the parties desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto do hereby agree as
follows:
ARTICLE I
DEFINITIONS
"Xxxxx" shall mean Xxxxx National Bank, N.A., a national banking
association and a wholly owned, direct subsidiary of Bancorp.
"Applicable Number of Shares" shall mean the greater of (i) the
maximum number of Shares that the Seller has the full right, power and authority
to sell and deliver to Purchaser as of the Initial Closing and (ii) 191,932 of
the Shares.
"Appropriate Federal Regulator" shall mean in the case of Xxxxx, the
OCC, and in the case of Bancorp, the Federal Reserve Board or the Federal
Reserve Bank of Richmond.
"Bancorp Agreement" shall mean an agreement between Purchaser and
Bancorp executed prior hereto, a copy of which is attached hereto as Exhibit A,
pursuant to which, among other things, (a) Purchaser will provide an opportunity
to the stockholders of Bancorp (other than Seller) to receive $21.00 per share
in cash for the shares of Bancorp Common Stock held by them (defined therein as
the "Tender Offer"); and (b) Bancorp (i) agrees to take all actions necessary so
that the execution, delivery and performance of this Agreement and consummation
of the Acquisition as contemplated by this Agreement and the Tender Offer do not
and will not result in Purchaser, any of his Permitted Assignees, or any of
their "Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Bancorp Rights Agreement) under the
Bancorp Rights Agreement or enable or require any Rights under the Bancorp
Rights Agreement to become exercisable or otherwise cause or give rise to the
occurrence of a "Distribution Date" as such term is defined in the Bancorp
Rights Agreement, (ii) agrees not to take any action to oppose or impede
consummation of the Acquisition, and (iii) agrees to take all actions necessary
so that the execution and delivery of this Agreement, consummation of the
Acquisition and consummation of the Tender Offer do not constitute a "Change in
Control" under the terms of any of the severance agreements referenced in Item 5
of Bancorp's Form 8-K report dated April 27, 1994 or otherwise cause any of the
rights or benefits of the employees under such severance agreements to become
exercisable or triggered.
"Bancorp Rights Agreements" shall mean the Rights Agreement dated as
of April 12, 1994 between Bancorp and The First National Bank of Maryland, as
Rights Agent, as such may be amended from time to time.
"Business Day" shall mean any day other than Saturday, Sunday or a day
on which commercial banks located either in the District of Columbia or the City
of New York are required or permitted to be closed.
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"Closing Date" shall mean the Initial Closing Date or a Subsequent
Closing Date, as applicable, each as defined in Section 2.1 hereof.
"Commission" shall mean the Securities and Exchange Commission.
"Closing Deadline" shall mean the later of (a) the close of business
on July 21, 1995; or (b) such other date as may be applicable pursuant to
Section 2.1(b) of this Agreement.
"Deposit" shall have the meaning specified in Section 2.2 hereof.
"Designated Account" shall mean an account of the Seller at a
commercial bank that is designated in a written notice provided to Purchaser at
least two Business Days prior to the Closing Date or other payment date.
"Escrowed Funds" shall have the meaning specified in Section 2 of the
Escrow Agreement attached hereto as Exhibit B.
"FDIA" shall mean the Federal Deposit Insurance Act, as amended.
"FDIC" shall mean the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
"Material Adverse Change" shall mean an event or condition described
in Section 6.3(e) of this Agreement that has occurred and is continuing at a
time and under circumstances described in Section 6.3(e) of this Agreement.
"OCC" shall mean the Office of the Comptroller of the Currency.
"Previously Disclosed" shall mean disclosed on or prior to the date
hereof in a letter from the party making such disclosure specifically referring
to this Agreement and delivered to the other party.
"Purchase Price" shall mean an amount equal to (i) $17.00 multiplied
by (ii) the Applicable Number of Shares.
"Remaining Shares" shall mean any of the Shares that are not sold and
delivered to Purchaser at the Initial Closing.
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Other terms used herein are defined in the preamble and elsewhere in
this Agreement.
ARTICLE II
PURCHASE AND SALE OF SHARES
2.1 Acquisition of Shares
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(a) The transactions contemplated by this Agreement shall be
consummated at a Closing (the "Initial Closing") to be held at the offices of
Xxxxxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX, or such other
place which shall be agreed to by the Seller and Purchaser, on the earlier of
(i) the date on which all conditions precedent contained in this Agreement have
been satisfied, but in no event later than the third Business Day following the
date on which the condition specified in Section 6.3(d) has been satisfied or
(ii) the Closing Deadline, or on such other date as the Seller and Purchaser may
agree in writing (the "Initial Closing Date"). Notwithstanding the foregoing,
unless the Seller and Purchaser otherwise agree in writing, the Initial Closing
shall take place no later than the Closing Deadline (as such may be extended
pursuant to Section 2.1(b) of this Agreement).
(b) Unless extended pursuant to this Section 2.1(b) or pursuant to the
written agreement of the parties as provided in Section 7.4, the Closing
Deadline for the Initial Closing Date shall be July 21, 1995. Provided that
Purchaser has satisfied the conditions set forth in this Section 2.1(b),
Purchaser shall have the right to extend the Closing Deadline one time (an
"Extension Right"), for an additional thirty day period (an "Extension Period").
An Extension Right may be exercised by Purchaser only if (i) as of the
commencement of the Extension Period the Seller does not have the right to
terminate this Agreement pursuant to Section 7.1(b) of this Agreement; (ii)
Purchaser has not received any regulatory disapproval or denial in connection
with this Agreement; (iii) the condition specified in Section 6.3(d) has not
been satisfied; (iv) Purchaser shall have notified Seller in writing of its
intent to exercise the Extension Right not more than ten days prior to the
Closing Deadline; (v) Purchaser shall have made a payment (an "Extension
Payment") in the amount of $50,000.00 in immediately available funds not later
than five days prior to the Closing Deadline to the Designated Account, or if no
Designated Account has been designated by Seller, by check payable to Seller. No
Extension Right may be exercised until the period commencing ten days prior to
the applicable Closing Deadline. Purchaser's notice of intent to exercise the
Extension Right shall state the reasons for the exercise of such Extension
Right.
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(c) At the Initial Closing, upon satisfaction of the conditions
contained in Article VI hereof, the Seller shall sell and deliver to Purchaser,
and Purchaser shall purchase from the Seller, the Applicable Number of Shares,
and in exchange therefor Purchaser shall pay to the Seller, by application of
the Escrowed Funds and wire transfer to the Designated Account or by check if no
Designated Account has been designated by the Seller, an amount equal to the
Purchase Price. At the Initial Closing, the Seller shall deliver to Purchaser
certificates representing the Applicable Number of Shares, together with duly
executed stock powers filled in blank, and shall take all reasonable actions at
the Initial Closing and thereafter (excluding delivering any legal opinions), at
the request of Purchaser, necessary to accomplish the transfer of the Applicable
Number of Shares to Purchaser.
(d) During the six month period following the Initial Closing, Seller
shall, within three Business Days after the time at which it obtains the full
right, power and authority to sell and deliver any of the Remaining Shares to
Purchaser, deliver a written notice ("Remaining Shares Notice") to Purchaser
specifying the number of Remaining Shares as to which it has obtained full
right, power and authority to sell and deliver to Purchaser. A closing (a
"Subsequent Closing") with respect to such Shares shall be held within twenty
(20) Business Days after Seller so notifies Purchaser (such date being a
"Subsequent Closing Date"). Provided, however, that if the Remaining Shares
Notice is given at any time after Purchaser has publicly announced a tender
offer for Bancorp Common Stock and before expiration of the period, including
extensions, during which shares of Bancorp Common Stock tendered thereunder may
be accepted or rejected, the Subsequent Closing Date shall be postponed until
after expiration of such period or such other time as Purchaser may purchase the
Remaining Shares covered by such Remaining Shares Notice consistent with
applicable law and regulations, and Seller covenants and agrees that it shall
not tender any Remaining Shares pursuant to any such tender offer. At any
Subsequent Closing, upon satisfaction of the conditions contained in Article VI
hereof, the Seller shall sell and deliver to Purchaser, and Purchaser shall buy
and accept from Seller, the number of Remaining Shares specified in the
applicable Remaining Shares Notice by delivering to Purchaser certificates
representing such Shares, together with duly executed and witnessed stock powers
filled in blank, and Purchaser shall pay to the Seller, by wire transfer to the
Designated Account or by
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check if no Designated Account has been designated by the Seller, an amount
equal to the number of Remaining Shares being sold to Purchaser at such
Subsequent Closing multiplied by $17.00.
2.2 Deposit
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Concurrently with execution by Purchaser and Seller of this Agreement,
Purchaser shall deliver to Citizens Bank of Maryland, Trust Department, 00000
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (or another financial institution
reasonably acceptable to the parties hereto) as escrow agent (the "Escrow
Agent"), $325,000 in immediately available funds (the "Deposit"), and Purchaser
and the Seller concurrently herewith shall execute and deliver the Escrow
Agreement substantially in the form attached hereto as Exhibit B (the "Escrow
Agreement"). The Deposit shall be held and distributed by the Escrow Agent in
accordance with the Escrow Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Except as Previously Disclosed, the Seller hereby represents and
warrants to Purchaser as follows:
3.1 Organization, Good Standing and
Authority of the Seller
-----------------------
The Seller is a national bank duly organized, validly existing and in
good standing under the laws of the United States.
3.2 Warranty of Title to the Shares
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(a) The Seller has, or will have as of the Initial Closing, the
ability to transfer valid title to the Applicable Number of Shares to Purchaser,
pursuant to Section 9-504 of the UCC and, upon their transfer to Purchaser
pursuant to Section 2.1, Purchaser will have valid title to the Applicable
Number of Shares free and clear of any pledges, liens, security interests,
options, restrictions on transfer or other encumbrances, other than those
imposed through acts of Purchaser or by applicable State or Federal securities
laws, rules or regulations.
(b) Upon the transfer to Purchaser of any Remaining Shares pursuant to
Section 2.1 of this Agreement, Purchaser will have valid title to such Remaining
Shares free and clear of any pledges, liens, security interests, options,
restrictions on transfer or other encumbrances, other than those imposed through
acts of Purchaser or by applicable State or Federal securities laws, rules or
regulations.
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3.3 Authorized and Effective Agreement
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(a) The Seller has all requisite corporate power and authority to
enter into and to perform all of its obligations under this Agreement. As of the
date hereof, the Seller has all requisite corporate power and authority to hold
the Shares as collateral for the Loan. The execution and delivery of this Stock
Purchase Agreement and consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action in respect
thereof on the part of the Seller. This Stock Purchase Agreement constitutes a
legal, valid and binding obligation of the Seller, which is enforceable against
the Seller in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, receivership or conservatorship and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(b) Neither the execution and delivery of this Stock Purchase
Agreement nor consummation of the transactions contemplated hereby, nor
compliance by the Seller with any of the provisions hereof shall (i) conflict
with or result in a breach of any provision of the articles of association or
by-laws of Seller, (ii) constitute or result in a breach of any term, condition
or provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, the Loan Agreement or
any related documents, or (iii) subject to receipt of all required governmental
approvals, violate any order, writ, injunction, decree, statute, regulation
applicable to the Seller.
3.4 Legal Proceedings
-----------------
To the best of the Seller's knowledge (Seller having no duty of
inquiry) as of the date of Seller's execution and delivery of this Agreement,
there are no actual pending actions, suits or proceedings which present a claim
to restrain or prohibit the transactions contemplated herein, except for
Delaware Court of Chancery proceedings C.A. 13464 and C.A. 13810.
3.5 SELLER'S DISCLAIMER OF REPRESENTATIONS
AND WARRANTIES
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PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY STATED IN
THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING OR WITH RESPECT TO
BANCORP, XXXXX OR THE SHARES.
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PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
PROVIDED OR TO BE PROVIDED TO PURCHASER WITH RESPECT TO BANCORP, XXXXX OR THE
SHARES WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT
MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES
NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, EVALUATIONS, REPORTS OR OTHER
INFORMATION PERTAINING TO BANCORP, XXXXX OR THE SHARES AS MAY HAVE BEEN
FURNISHED TO PURCHASER BY SELLER OR ITS AGENTS OR REPRESENTATIVES.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE SHARES AS PROVIDED IN THIS AGREEMENT IS MADE
WITHOUT RECOURSE ON AN "AS IS", "WHERE IS" CONDITION AND BASIS WITH ALL FAULTS
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS
ARTICLE III. IT IS UNDERSTOOD AND AGREED THAT THE SHARES WILL BE SOLD BY SELLER
AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS ARTICLE III.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT IT IS AWARE THAT THE
SHARES (A) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY OTHER STATE OR FEDERAL SECURITIES STATUTE, THAT BANCORP HAS
NO OBLIGATION OR INTENTION TO REGISTER THE SHARES, OR TO TAKE ANY ACTION SO AS
TO PERMIT SALES PURSUANT TO THE ACT, AND THAT SELLER HAS NO OBLIGATION OR
INTENTION TO CAUSE THE SHARES TO BE REGISTERED OR TO TAKE ANY ACTION SO AS TO
PERMIT SALES PURSUANT TO THE ACT, (B) WILL NOT BE LISTED ON ANY STOCK OR OTHER
SECURITIES EXCHANGE, (C) WILL CARRY NO RATING BY ANY RATING SERVICE, AND (D)
WILL NOT BE READILY MARKETABLE. PURCHASER UNDERSTANDS THAT BECAUSE OF THE ACT,
PURCHASER WILL BE PRECLUDED FROM MAKING ANY TRANSFER OR OTHER DISPOSITION OF ANY
OF THE SHARES FOR AN INDEFINITE PERIOD UNLESS A SPECIFIC EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE WITH RESPECT TO ANY PARTICULAR
TRANSACTION OR UNLESS THE SHARES HAVE BEEN REGISTERED PURSUANT TO THE ACT.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THE SHARES WILL BEAR AN
APPROPRIATE RESTRICTIVE LEGEND TO THE EFFECT THAT THE SHARES MAY NOT BE SOLD OR
TRANSFERRED WITHOUT REGISTRATION OR THE AVAILABILITY OF A VALID EXEMPTION FROM
REGISTRATION, AND THAT AN ACCEPTABLE OPINION OF COUNSEL MAY BE REQUIRED BY THE
ISSUER.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as Previously Disclosed, Purchaser hereby represents and
warrants to the Seller as follows:
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4.1 Authorized and Effective Agreement
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(a) Purchaser has all requisite power and authority to enter into and
perform all of its obligations under this Stock Purchase Agreement. The
execution and delivery of this Stock Purchase Agreement and consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action in respect thereof on the part of Purchaser. This Stock
Purchase Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms subject, as to
enforceability, to bankruptcy, insolvency and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. Purchaser's consummation of the transactions contemplated by this
Agreement is not contingent upon financing.
(b) Neither the execution and delivery of this Stock Purchase
Agreement, nor consummation of the transactions contemplated hereby, nor
compliance by Purchaser with any of the provisions hereof shall (i) constitute
or result in a breach of any term, condition or provision of, or constitute a
default under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any lien, charge or
encumbrance upon any property or asset of Purchaser pursuant to, any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation, or
(ii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser.
4.2 Legal Proceedings: Regulatory Approvals
---------------------------------------
To the best of Purchaser's knowledge as of the date of Purchaser's
execution and delivery of this Agreement, there are no actual actions, suits or
proceedings which present a claim to restrain or prohibit the transactions
contemplated herein. No fact or condition relating to Purchaser known to
Purchaser exists that would prohibit Purchaser from obtaining all of the
regulatory approvals contemplated herein.
4.3 Purchaser's Due Diligence
-------------------------
At the time of the execution of this Agreement, Purchaser shall have
made such examination, review and investigation of the facts and circumstances
necessary to evaluate Bancorp, Xxxxx and the Shares as it has deemed necessary
or appropriate to form a basis for its decision to purchase the Shares.
Purchaser is assuming all risk with respect to the completeness, accuracy or
sufficiency of its examination, review and investigation. Purchaser has agreed
to the Purchase Price on the basis of its own independent investigation and
evaluation of
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Bancorp and Xxxxx and has not sought or relied upon any representations,
warranties, information, covenants or agreements of Seller (other than the
express representations and warranties set forth in this Agreement).
4.4 Sophistication; Investment Intent; Legend
-----------------------------------------
Purchaser, his Permitted Assignees and their respective agents and
representatives have such knowledge and experience in financial and business
matters as to enable them to utilize the information made available to them in
connection with the purchases contemplated hereby, to evaluate the merits and
risks of an investment in Bancorp and to make an informed decision with respect
thereto. Purchaser and Permitted Assignees are acquiring the shares of Bancorp
common stock hereunder for their own account for investment only and not with a
view to making a distribution thereof within the meaning of the Securities Act
of 1933 (the "1933 Act"). Such shares will not be sold or transferred by
Purchaser or Permitted Assignees in violation of the securities laws of the
United States or any state thereof or other jurisdiction. Purchaser and
Permitted Assignees understand and agree that the certificate or certificates
representing such shares will bear a legend substantially to the effect set
forth below:
The securities represented by this certificate have not been
registered under either the Securities Act of 1933 (the "Act") or
applicable state or foreign securities laws (the "Other Acts")
and shall not be sold or otherwise disposed of for value by the
holder hereof except upon registration of such sale or
disposition in accordance with the securities registration
requirements of the Act or any applicable Other Acts, or pursuant
to an exemption from such registration requirements.
ARTICLE V
COVENANTS
5.1 Applications
------------
As promptly as practicable after the date hereof, Purchaser shall
submit applications for prior approval of the transactions contemplated herein
to the Federal Reserve Board, or any other federal, state or local government
agency, department or body the approval of which is required for consummation of
the Acquisition, and diligently pursue all such governmental approvals of such
applications. Except to the extent prohibited by law,
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rule, regulation or order, Seller shall, on specific request from Purchaser,
provide to Purchaser all non privileged, non-confidential documents in
possession, custody or control of the persons at Seller charged with
administering the Loan that are necessary for Purchaser to secure court or other
governmental approvals, and information in the possession, custody or control of
the persons at Seller charged with administering the Loan that would establish a
Material Adverse Change. Purchaser shall keep Seller reasonably informed
regarding the status of Purchaser's efforts to obtain regulatory approval of the
transactions contemplated by this Agreement. Without limiting the generality of
the foregoing, Purchaser shall inform Seller in writing within three (3)
business days of formal notice of (i) regulatory approval of the transaction;
(ii) regulatory disapproval of the transaction; or (iii) imposition of any
conditions to regulatory approval.
5.2 Best Efforts
------------
Purchaser and the Seller shall each use its best efforts in good faith
to take or cause to be taken all action necessary or desirable on its part so as
to permit consummation of the Acquisition, in accordance with the terms of this
Stock Purchase Agreement, at the earliest possible date. Neither Purchaser nor
the Seller shall take, or cause or unreasonably permit to be taken, any action
that would substantially delay or impair the prospects of completing the
Acquisition. On reasonable request by the other party, Purchaser and Seller
shall advise the other party of the status of its efforts to consummate the
Acquisition.
5.3 Press Releases
--------------
Purchaser and the Seller shall agree with each other as to the form
and substance of any press release related to this Stock Purchase Agreement or
the transactions contemplated hereby, and consult with each other as to the form
and substance of other public disclosures related thereto, other than those
required by any law, regulation, rule or order.
5.4 Forbearances of the Seller
--------------------------
Except with the prior written consent of Purchaser, between the date
hereof and the Closing Date, the Seller shall not enter into any binding
agreement concerning any acquisition of the Shares, other than an agreement that
is expressly a back-up agreement the effectiveness of which is expressly
conditioned on the termination of this Agreement pursuant to Section 7.1 hereof.
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5.5 Brokers and Finders
-------------------
Each party shall be responsible for any liability for any fees or
commissions or other payments in connection with the transactions contemplated
herein arising from claims by any broker, finder, financial advisor, attorney or
accountant it shall have engaged and shall indemnify the other party against
such liability. Purchaser has engaged Xxxxxx, Xxxxx Xxxxx, Incorporated as its
financial advisor in connection with the transactions contemplated by this
Agreement. Seller has engaged no financial advisor in connection with the
transactions contemplated by this Agreement. Purchaser acknowledges that Bancorp
has engaged Xxxxxx Xxxxxxxx and Company as its financial advisor, and that
Seller is not responsible for any fee or commission or other payments to Xxxxxx
Xxxxxxxx and Company.
5.6 Release of National Bancshares, Inc.
------------------------------------
At the Initial Closing, upon satisfaction of the conditions set forth
in Article VI hereof, Seller and Purchaser shall execte and deliver a release of
claims against National Bancshares, Inc. ("NBI") and each of its directors
(collectively, the "NBI Group") and officers, employees and agents, in all
material respects in the form attached hereto as Exhibit C.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent -- Purchaser and the Seller
------------------------------------------------
The respective obligations of Purchaser and the Seller to effect the
transactions contemplated by this Agreement at any Closing Date shall be subject
to satisfaction or waiver by each party of the following conditions at or prior
to such Closing Date:
(a) Neither Purchaser nor the Seller shall be subject to any order,
decree or injunction of a court or agency of competent jurisdiction which
enjoins or prohibits consummation of the transactions contemplated by this Stock
Purchase Agreement.
(b) The NBI Group shall have executed and delivered an absolute and
unconditional release of any and all claims the NBI Group has or may have
against Seller, Bancorp, Xxxxx, and Purchaser, and their respective directors,
officers, employees and agents, in all material respects in the form attached
hereto as Exhibit D, except that the foregoing release may exclude from coverage
and release thereunder any of Seller, Bancorp, Xxxxx, Purchaser or any director
of Bancorp if such person or entity does
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not contemporaneously therewith execute a similar release in favor of the NBI
Group.
(c) Seller shall have executed and delivered, effective as of the
Initial Closing Date, an absolute and unconditional release of any and all
claims that Seller has or may have against Bancorp, Xxxxx or any of their
respective affiliates, directors, officers, employees or agents related to any
action or inaction by any of them in connection with the Shares, the Seller's
efforts to sell the Shares, the Loan and any dealings, negotiations,
discussions, agreements or contracts between Seller and any party regarding the
Shares, Bancorp or Xxxxx, such release to be in the form attached hereto as
Exhibit E; except that such release may exclude from coverage and release
thereunder any director of Bancorp who does not contemporaneously therewith
execute and deliver the release required by Section 6.2(g) (each director of
Bancorp who is entitled to a release hereunder is referred to herein as a
"Released Director").
(d) Prior to the execution hereof, Purchaser and Seller shall have
received the opinion of Xxxxxxxxx & Xxxxxxx that the execution, delivery and
performance of this Agreement and consummation of the Tender Offer shall not
result in the Purchaser, any of his Permitted Assignees, or any of their
"Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Bancorp Rights Agreement) under the
Bancorp Rights Agreement or enable or require any Rights under the Bancorp
Rights Agreement to become exercisable, such opinion to be in form and substance
satisfactory to Seller, Purchaser and their respective counsel.
(e) Purchaser and Bancorp shall have executed and delivered the
Bancorp Agreement and Bancorp shall have complied with all of its obligations
thereunder.
(f) Seller, Bancorp, Xxxxxxx X. Xxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxx Xxxxx, Xxxxxxxx X. Xxxxx, Xx., Xxxxxxx X. Xxxxx and Xxxx X.
Xxxxxxxx shall have executed and delivered all motions or stipulations necessary
or appropriate to cause the dismissal with prejudice of that certain action
filed in the Court of Chancery of the State of Delaware in and for New Castle
County, captioned Citibank, N.A. v. Xxxxxxx Xxxxx National Bancorp, Inc., et
al., C.A. No. 13464, including dismissal of all claims and counterclaims.
6.2 Conditions Precedent -- the Seller
----------------------------------
The obligations of the Seller to effect the transactions contemplated
by this Agreement at any Closing Date shall be subject to satisfaction of the
following additional conditions at
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or prior to such Closing Date unless waived by the Seller pursuant to Section
7.4 hereof:
(a) The representations and warranties of Purchaser set forth in
Article IV hereof shall be true and correct in all material respects as of the
date of this Agreement and as of such Closing Date as though made on and as of
such Closing Date (or on the date when made in the case of any representation
and warranty which specifically relates to an earlier date), except as otherwise
expressly provided in this Stock Purchase Agreement or consented to in writing
by the Seller.
(b) Purchaser shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement.
(c) Purchaser shall have received all approvals of the transactions
contemplated herein from the Federal Reserve Board and any other state or
federal government agency, department or body, the approval of which is required
for the consummation of the Acquisition and all notice and waiting periods in
connection therewith shall have expired.
(d) Purchaser shall have delivered to the Seller a certificate, dated
as of such Closing Date and signed by its authorized representative, stating
that to the best of such person's knowledge the conditions set forth in Sections
6.2(a), 6.2(b), and 6.2(c) have been satisfied.
(e) Purchaser shall have delivered to Seller an opinion of Huddleston,
Bolen, Xxxxxx, Xxxxxx & Xxxxx, Huntington, West Virginia, that the sale of the
Shares by Seller to Purchaser and Purchaser's Permitted Assignees is exempt from
registration under the Securities Act of 1933, as amended.
(f) That there are no actions, suits, claims, governmental
investigations or procedures instituted or pending that present a claim to
restrain or prohibit the transactions contemplated herein.
(g) Bancorp and Xxxxx each shall have executed and delivered to
Seller, effective as of the Initial Closing Date, an absolute and unconditional
release of any and all claims that it has or may have against Seller or any of
its affiliates, directors, officers, employees or agents relating to any action
or inaction by any of them in connection with the Shares, Seller's efforts to
sell the Shares, the Loan and any dealings, negotiations, discussions,
agreements or contracts between Seller and any party regarding the Shares,
Bancorp or Xxxxx, such release to be in all material respects in the form
attached hereto as Exhibit F, and each Released Director of Bancorp shall have
14
executed and delivered to Seller, effective as of the Initial Closing Date, an
absolute and conditional release in the same form and covering the same matters.
6.3 Conditions Precedent -- Purchaser
---------------------------------
The obligations of Purchaser to perform under Section 2.1 of this
Agreement shall be subject to satisfaction of the following additional
conditions at or prior to such Closing Date unless waived by Purchaser pursuant
to Section 7.4 hereof:
(a) The representations and warranties of the Seller set forth in
Article III hereof shall be true and correct in all material respects as of the
date of this Agreement and as of such Closing Date as though made on and as of
such Closing Date (or on the date when made in the case of any representation
and warranty which specifically relates to an earlier date), except as otherwise
contemplated by this Agreement or consented to in writing by Purchaser.
(b) The Seller shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement.
(c) The Seller shall have delivered to Purchaser a certificate, dated
as of such Closing Date and signed by its authorized representative, stating
that to the best of such person's knowledge the conditions set forth in Sections
6.3(a) and 6.3(b) have been satisfied.
(d) Purchaser shall have received all regulatory approvals required in
connection with the transactions contemplated by this Stock Purchase Agreement,
all notice periods and waiting periods required after the granting of any such
approvals shall have passed, all such approvals shall be in effect and all
conditions precedent imposed by such approvals shall have been satisfied;
provided, however, that no such approval shall have imposed any condition or
requirement that, in the reasonable opinion of Purchaser, would so materially
and adversely affect the business or economic benefits of the transactions
contemplated by this Agreement as to render consummation of such transactions
unduly burdensome.
(e) No Material Adverse Change shall have occurred and be continuing.
A Material Adverse Change shall be deemed to have occurred only if:
(i) The Appropriate Federal Regulator for Bancorp or Xxxxx shall
have issued a determination by March 31, 1995, based on the reported
financial condition of
15
Bancorp or Xxxxx on or before March 31, 1995, that Xxxxx or Bancorp is
"undercapitalized" within the meaning of such regulator's prompt
corrective action regulations promulgated pursuant to Section 38 of
the FDIA;
(ii) The Appropriate Federal Regulator for Bancorp or Xxxxx shall
have issued a prompt corrective action order by March 31, 1995 and
Xxxxx or Bancorp shall have failed to comply with such order within
the time specified in such order or, if no time is specified, within a
reasonable time;
(iii) Xxxxx or Bancorp shall have been notified on or before
March 31, 1995 by its Appropriate Federal Regulator that it is in an
unsafe and unsound condition or is engaging in an unsafe and unsound
practice, and Xxxxx or Bancorp shall have failed to cure such
condition or cease such practice within the time set by such regulator
or, if no time is set, within a reasonable time;
(iv) On or before March 31, 1995, Xxxxx or Bancorp shall have
entered into a written agreement with its Appropriate Federal
Regulator materially limiting its ability to engage in its principal
business activities;
(v) On or before March 31, 1995, the insurance of Xxxxx' deposits
by the FDIC shall have been suspended or terminated; or
For the purpose of subsection (ii) and (iii), above, in the event that
the time in which an order may be complied with or a cure may be effected has
not expired as of the Closing Date, no "Material Adverse Change" shall be deemed
to have occurred, and Purchaser, not the Seller, shall bear the risk of
Bancorp's and/or Xxxxx' compliance or non-compliance with such order, provided,
however, that in the event that a Material Adverse Change is deemed not to have
occurred because the time in which to comply with an order or effect a cure has
not expired, then Purchaser shall be entitled to a refund from Seller in an
amount equal to the lesser of (a) the total amount of Extension Payments as may
have been paid to Seller or (b) the reasonable and actual cost of effectuating
the required cure or complying with the regulator's order.
Purchaser shall provide a written notice to the Seller promptly after
Purchaser obtains actual knowledge of facts constituting a Material Adverse
Change describing such facts in reasonable detail (a "MAC Notice").
16
(f) That there are no actions, suits, claims, governmental
investigations or procedures instituted or pending that present a claim to
restrain or prohibit the transactions contemplated herein, other than Delaware
Chancery Court proceeding C.A. 13810.
(g) Upon acquisition of the Shares by Purchaser pursuant to this
Agreement, Purchaser shall own at the Initial Closing at least 67.4% and at any
Subsequent Closing at least 70% of the outstanding voting stock and equity
interest in Bancorp, which shall own 100% of the outstanding voting stock and
equity interest in Xxxxx and there shall be no outstanding rights or options
held by any person or entity the exercise of which could result in a dilution of
the ownership interests of Purchaser in Bancorp or Bancorp in Xxxxx.
ARTICLE VII
TERMINATION, WAIVER, AMENDMENT AND INDEMNIFICATION
7.1 Termination
-----------
This Agreement may be terminated:
(a) At any time by the mutual consent in writing of the parties
hereto.
(b) At any time, by Purchaser in writing if the Seller has, or by the
Seller in writing if Purchaser has, in any material respect, breached (i) any
covenant or undertaking contained herein or (ii) any representation or warranty
contained herein, which breach has been materially adverse, and in the case of
(i) or (ii) such breach has not been cured by the earlier of 30 days after the
date on which written notice of such breach is given to the party committing
such breach or a Closing Date; provided that neither party may terminate this
Agreement pursuant to this Section 7.1(b) if at such time such party has, in any
material respect, breached (i) any covenant or undertaking contained herein or
(ii) any representation or warranty contained herein and such breach has not
been cured in all material respects.
(c) At any time by either party hereto if there shall have been a
final regulatory determination (as to which all periods for appeal, request for
reconsideration and judicial review shall have expired and no appeal, request
for reconsideration or petition for judicial review shall be pending) denying
any regulatory application the approval of which is a condition precedent to
either party's obligations hereunder, or approving such application with
conditions that, in the reasonable opinion of Purchaser, are unduly burdensome.
17
(d) By Purchaser in the event a Material Adverse Change has occurred
and is continuing as of the Initial Closing Date;
(e) At any time by either party hereto if there shall have been a
final judicial determination in an action brought by a person or entity that is
not a party hereto, acting in concert with a party hereto or a shareholder of
Purchaser (as to which all periods for appeal shall have expired and no appeal
shall be pending) that any material provision of this Agreement is illegal,
invalid, or unenforceable.
(f) By Seller in writing, if the Initial Closing Date has not occurred
by the Closing Deadline, as it may be extended pursuant to Section 2.1(b), but
only if Purchaser is not entitled at such time to terminate this Agreement
pursuant to Section 7.1(b) (ignoring for such purpose any unexpired cure period
relating to a breach by the Seller specified therein).
(g) By the Seller if (i) it has received a MAC Notice from Purchaser,
(ii) Purchaser has not terminated this Agreement within ten Business Days after
the date (the "MAC Notice Date") such MAC Notice was delivered to the Seller by
Purchaser, (iii) the Seller delivers a written notice of termination (a "Seller
Notice") to Purchaser within 20 Business Days after the MAC Notice Date and (iv)
Purchaser has not, within five Business Days after its receipt of a Seller
Notice, waived its right to terminate this Agreement or refuse to consummate the
transactions contemplated hereby based solely upon the Material Adverse Change
specified in such MAC Notice.
(h) By the Seller or Purchaser, in writing, if the Deposit is not
delivered to the Escrow Agent and the Escrow Agreement is not executed by the
Seller, Purchaser and the Escrow Agent within the time period specified by
Section 2.2 hereof.
(i) By the Seller or Purchaser, in writing, if the Borrowers or any of
them or any of their successors or assigns, exercises any rights under the
documentation pertaining to the Loan, as in effect on the date hereof, to redeem
or repurchase more than 11,106 of the Shares.
(j) By the Seller or Purchaser, in writing, if the Federal Reserve
Board or the Federal Reserve Bank of New York takes any action under, or Seller
reasonably determines that Seller must take action to comply with Section
2(a)(5)(D) of the Bank Holding Company Act of 1956, as amended, that renders the
Seller unable to transfer or cause the transfer of the Applicable Number of
Shares to Purchaser.
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(k) By Purchaser if it concludes that, upon consummation of the
Acquisition, Purchaser will own less than 70% of the outstanding voting stock
and equity interest in Bancorp, Bancorp will own less than 100% of the
outstanding voting stock and equity interest in Xxxxx or there are outstanding
rights or options held by any person or entity that could result in a dilution
of the ownership interests of Purchaser in Bancorp or Bancorp in Xxxxx.
(l) By Purchaser or Seller in the event Bancorp fails to comply with
all of its obligations under the Bancorp Agreement.
(m) By Purchaser or Seller in the event the conditions specified in
Section 6.1 have not been satisfied by the Closing Deadline or the expiration of
the Extension Period; provided, however, that Purchaser may terminate this
Agreement under this subsection (m) only if the conditions specified in Section
6.3(d) have been satisfied.
7.2 Effect of Termination.
----------------------
In the event this Agreement is terminated pursuant to Section 7.1
hereof, this Agreement shall become void and have no effect, except that (i) the
provisions of Article 8 in their entirety and, with respect to any termination
after the Initial Closing, any provisions (other than Section 2.1(d)) that by
their terms survive the Initial Closing shall survive any such termination, (ii)
subject to Section 8.10 of this Agreement, a termination pursuant to Section
7.1(b) shall not relieve the breaching party from liability for an uncured
breach of the covenant, undertaking, representation or warranty giving rise to
such termination and (iii) a termination after the Initial Closing shall not
invalidate or otherwise affect any transactions consummated prior to the date of
such termination.
7.3 Survival of Representations,
Warranties and Covenants
------------------------
All representations, warranties and covenants in this Agreement shall
expire on, and be terminated and extinguished at, each Closing Date with respect
to any transactions consummated on such Closing Date other than covenants that
by their terms are to be performed after such Closing Date, provided that no
such representations, warranties or covenants shall be deemed to be terminated
or extinguished so as to deprive Purchaser or the Seller (or any director,
officer or controlling person thereof) of any defense at law or in equity which
otherwise would be available against the claims of any person, including,
without limitation, any shareholder or former shareholder of either Purchaser or
the Seller or Bancorp, the aforesaid representations, warranties and
19
covenants being material inducements to consummation by Purchaser and the Seller
of the transactions contemplated herein.
7.4 Waiver
------
Except with respect to any required regulatory approval, each party
hereto by written instrument signed by an authorized officer of such party, may
at any time extend the time for the performance of any of the obligations or
other acts of the other party hereto and may waive (i) any inaccuracies of the
other party in the representations or warranties contained in this Agreement or
any document delivered pursuant hereto, (ii) compliance with any of the
covenants, undertakings or agreements of the other party, or satisfaction of any
of the conditions precedent to its obligations, contained herein or (iii) the
performance by the other party of any of its obligations set out herein. No
waiver or extension shall be effective unless it is in writing signed by the
party granting such waiver or extension.
7.5 Amendment or Supplement
-----------------------
This Agreement may be amended or supplemented in writing at any time
by mutual agreement of Purchaser and the Seller. No modification or amendment
of, or supplement to, this Agreement shall be effective unless signed by the
party to be bound by such modification, amendment or supplement.
7.6 Indemnification
---------------
(a) From and after the Initial Closing, the Seller shall indemnify
Purchaser for claims made by, or liability in favor of, any of the Borrowers on
account of such Borrowers' rights or remedies under the Loan Agreement or
applicable bankruptcy or creditors rights laws. From and after the Initial
Closing, Purchaser shall indemnify the Seller for claims made by, or liability
in favor of, any shareholder of Bancorp or Xxxxx (including all past, present or
future shareholders of Bancorp or Xxxxx), other than Borrowers, arising from or
in connection with: (i) any action or inaction by Purchaser in connection with
Bancorp or Xxxxx following the Initial Closing or (ii) in connection with the
Bancorp Rights Agreement or any amendment or modification thereto.
(b) If any action or proceeding (each a "Claim") is brought or
asserted against either party ("Indemnified Party") in respect of which
indemnification may be sought under Section 7.6(a), the Indemnified Party shall
promptly notify such other party ("Indemnifier") in writing of the existence of
such Claim, describe the Claim in reasonable detail and indicate the amount
(estimated, if necessary and to the extent feasible) of the
20
damages that have been or may be suffered by the Indemnified Party and the
Indemnifier shall thereafter assume and control the defense of such Claim.
(c) Upon the assumption of control by the Indemnifier as provided in
Section 7.6 (b), the Indemnifier shall, at its expense, diligently proceed with
defense, compromise or settlement of the Claim at Indemnifier's sole expense,
including employment of counsel reasonably satisfactory to the Indemnified
Party, provided that the Indemnified Party shall have the right to employ
separate counsel with regard to any such Claim and to participate in the defense
thereof at its own cost, provided that the Indemnified Party shall have the
right to control the defense of any such Claim and the Indemnifier shall pay the
cost thereof in the event that (i) the Indemnifier shall have failed to assume
the defense thereof within ten days after receipt of written notice of such
action or (ii) both the Indemnifier and the Indemnified Party are parties to
such Claim and the Indemnified Party has been advised by counsel that there may
be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifier.
(d) In connection with any Claim, the Indemnified Party shall
cooperate fully, but at the expense of the Indemnifier, to make available to the
Indemnifier all pertinent information and witnesses under the Indemnified
Party's control, and take such other steps as in the opinion of counsel for the
Indemnifier are necessary to enable the Indemnifier to conduct such defense.
(e) The final, nonappealable determination of any Claim, including all
related costs and expenses, shall be binding and conclusive upon the Indemnifier
and the Indemnified Party as to the amount of the indemnification; provided,
--------
however, that, except with the written consent of the Indemnified Party, the
-------
Indemnifying Party shall not consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the
provision by the claimant to the Indemnified Party of a release from all
liability in respect of such Claim.
(f) Neither party hereto shall compromise or settle any claim, action
or proceeding subject to Section 7.6(a) without the consent of the other party
hereto, which consent shall not be unreasonably withheld.
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ARTICLE VIII
MISCELLANEOUS
8.1 Expenses
--------
Except as provided elsewhere in this Agreement, each party shall bear
and pay all fees, expenses and costs that it incurred in connection with the
transactions contemplated by this Agreement, without limitation, fees and
expenses of its own financial consultants, accountants and counsel.
8.2 Entire Agreement
----------------
This Stock Purchase Agreement contains the entire agreement between
the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereto,
written or oral, other than documents referred to herein. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto, and their respective successors. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, and their successors or Permitted Assignees, any rights,
remedies, obligations or liabilities, except that the conditions precedent set
forth in Section 6.1(b), (c) and (f) are also for the benefit of Bancorp, and
such provisions shall not be amended, modified or waived in any respect without
the prior written consent of Bancorp.
8.3 No Assignment
-------------
Neither of the parties hereto may assign any of its rights or
obligations under this Stock Purchase Agreement to any other person without the
prior written consent of the non-assigning party, which shall not be
unreasonably withheld. Seller hereby consents to Purchaser's assignment of
proportionate rights as Purchaser hereunder to each of Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxx, Xx., Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxx and their respective spouses
(each such person being referred to herein as a "Permitted Assignee"). Any
instrument of assignment shall provide for each assignee's written acceptance
thereof, which acceptance by its express terms shall constitute the affirmative
adoption by each such assignee of all of Purchaser's representations,
warranties, covenants and obligations set forth in this Agreement, as fully as
if each assignee had been an original party signatory hereto. Such assignments,
if any, shall not relieve Purchaser from, nor modify, alter or diminish his
representations, warranties, covenants and obligations set forth in this
Agreement. Purchaser shall furnish copies of any such assignment to Seller
within 3 days after execution thereof. Notwithstanding the foregoing, the Seller
may assign its rights under this Agreement to a trustee or other fiduciary
provided that (i) the Seller has
22
transferred the Shares to such trustee or fiduciary to prevent a violation of
the Bank Holding Company Act of 1956 and (ii) such trustee or fiduciary agrees
in writing to be bound by and perform the Seller's obligations under this
Agreement and the Escrow Agreement.
8.4 Notices
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
overnight express, or by registered or certified mail, postage prepaid,
addressed as follows:
If to the Seller:
Citibank, N.A.
Private Banking Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx, Xx.
With a required copy to:
Linowes and Xxxxxxx
Xxxxx Xxxxx
0000 Xxxxx Xxxxxx
P. O. Box 8728
Silver Spring, Maryland 20907-8728
Attention: Xxxxxxxx X. Xxxxxxxxx
If to Purchaser:
Xxxxxxxx X. Xxxxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
With a required copy to:
Huddleston, Bolen, Xxxxxx, Xxxxxx & Xxxxx
000 Xxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
8.5 Captions
--------
The captions contained in this Stock Purchase Agreement are for
reference purposes only and are not part of this Agreement.
23
8.6 Counterparts
------------
This Stock Purchase Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
8.7 Time of the Essence
-------------------
The parties hereto agree that time is of the essence.
8.8 Jury Trial Waiver
-----------------
THE PARTIES HERETO AGREE TO WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL
BY JURY OF ANY ISSUES RAISED IN ANY ACTION ALLEGING A BREACH OF THIS AGREEMENT.
8.9 Governing Law and Jurisdiction
------------------------------
THE VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
8.10 Limitation of Liability
-----------------------
(a) The parties agree and acknowledge that in the event that Purchaser
fails to consummate the Acquisition, Seller's damages would be
difficult to calculate, and the amount of the Escrowed Funds
constitutes reasonable and appropriate liquidated damages for
Purchaser's failure to consummate the Acquisition. Except for actual
damages resulting from Purchaser's material breach of Purchaser's
obligations under Section 7.6 of this Agreement and Purchaser's
failure to consummate a Subsequent Closing pursuant to Section 2.1(d)
of this Agreement, the amount of the Escrowed Funds shall constitute
the limit of Purchaser's liability under this Agreement.
(b) In the event that Purchaser terminates this Agreement pursuant to
Section 7.1(b), or the Seller terminates this Agreement pursuant to
Section 7.1(j), Purchaser shall be entitled to payment in an amount
equal to Purchaser's reasonable and actual out-of-pocket fees, costs
and expenses of its attorney's and other professionals incurred in
connection with the transactions contemplated by this Agreement from
the date of Seller's execution and delivery of this Agreement through
the date on which this Agreement is terminated. Except for actual
damages resulting from Seller's material breach of Section 7.6 of this
Agreement, the amounts payable by Seller under this
24
subsection 8.10(b) shall constitute the limit of Seller's liability
under this Agreement.
IN WITNESS WHEREOF, the corporate party hereto has caused this Stock
Purchase Agreement to be executed in counterparts by its duly authorized
officers and its corporate seal to be hereunto affixed and attested by its
officers thereunto duly authorized, and the individual party has signed his
name, all as of the day and year first above written.
CITIBANK, N.A.
By:_____________________________________
Name:______________________________
Title:_____________________________
----------------------------------------
XXXXXXXX X. XXXXXXXX
c:\agree\citbkmtr.sp9
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