EXHIBIT 2.2
AMENDMENT NO. 1
This Amendment No. 1 (the "Amendment"), dated February __, 1997, is
hereby made to the Acquisition Agreement dated January 6, 1997 (the
"Agreement"), by and between 1st United Bank, a Florida chartered bank ("1st
United"), Island National Bank and Trust Company, a national banking association
("Island") and 1st United Bancorp, a Florida bank holding company ("Bancorp"),
(1st United, Island and Bancorp are collectively referred to herein as the
"Parties").
WHEREAS, the Agreement requires that, within 30 days after the Effective
Date, Island obtain agreements (the "Modification Agreements") in form
acceptable to Bancorp and 1st United pursuant to which each holder of each
Island Option agrees to surrender such optionholder's rights pursuant to Island
Options in return for the consideration set forth in Section 2.b(ii)(a) of the
Agreement and the Agreement provides a procedure pursuant to which the Merger
Consideration to be delivered to the holders of Island Options is to be
delivered; and
WHEREAS, the Parties have agreed that it is not appropriate to obtain
Modification Agreements from the holders of Island Options, other than existing
or former executive officers and directors of Island, prior to the distribution
of the Definitive Island Proxy Materials; and
WHEREAS, due to increases in the value of Bancorp Shares since the
execution of the Agreement, it is necessary to amend the formula for computation
of the portion of the Merger Consideration to be delivered to the holders of
Island Options to continue to reflect the original intent of the Parties.
WHEREAS, the Parties wish to modify the Agreement as provided herein;
NOW, THEREFORE, in consideration for the premises and mutual promises
contained herein, the Parties agree as follows:
1. The foregoing recitations are incorporated into and comprise a part of
this Amendment.
2. Unless otherwise defined herein, any capitalized term used herein shall
have the meaning ascribed to such term in the Agreement.
3. Section 2.6(i) and Section 2.6(ii)(a) are hereby amended to read as
follows:
(i) At and as of the Effective Time, each Island Share, issued and
outstanding immediately prior to the Effective Time other than the Dissenting
Shares, and each Island Option as to which the holder has entered into an
agreement as contemplated by Section 5.2(iv) shall, by virtue of the Merger and
without any action on the part of the Island Stockholders, be converted into and
represent the right to receive a portion of the Merger Consideration calculated
as
provided in ss.2.6(ii) and deliverable to the holder of record of the Island
Option as provided hereinafter and of the Certificate, without interest thereon,
upon surrender of the Certificate representing such Island Share.
(ii) Subject to any adjustments made to the amount of the Merger
Consideration pursuant to ss. 2.6(iv), each holder of:
a. Island Options as of the Effective Time, with respect to each
group of Island Options held by such holder which are exercisable on the same
terms, (and as to which that holder has entered into an agreement as
contemplated by Section 5.2(iv)) shall receive a portion of the Merger
Consideration equal to: (i) the Aggregate Consideration (as hereinafter defined)
divided by the Total Equities; (ii) minus the Option Price for such Island
Options held by that holder; (iii) multiplied by the number of Island Shares
issuable on the exercise of the Island Options in each group of Island Options
held by that holder; (iv) divided by the Actual Value; and (v) multiplied by the
number of Bancorp Shares comprising the Bancorp Purchase Stock. Aggregate
Consideration shall mean the Actual Value plus the aggregate exercise price for
all Island Options. The foregoing is expressed as a formula as follows:
[GRAPHIC OMITTED]
4. Section 2.10 of the Agreement is hereby amended to read as follows:
SECTION 2.10 EXCHANGE OF SHARES.
(i) Within three (3) business days after the Effective Time, Bancorp
and/or 1st United shall deposit cash and transmit instructions to the Transfer
Agent to issue and deliver the Bancorp Purchase Stock and cash in amounts
necessary to make delivery of the Merger Consideration pursuant to Section 2.6
hereof to holders of Island Shares that are issued and outstanding immediately
prior to the Effective Time and to the holders of Island Options who have
executed the agreements contemplated by Section 5.2(iv) hereof, and, to the
extent ascertainable under applicable law, to make the appropriate cash
payments, if any, to holders of Dissenting Shares (such amounts being
hereinafter referred to as the "Exchange Fund"). The Transfer Agent shall,
pursuant to such instructions given by Bancorp, promptly make the payments and
delivery provided for in the preceding sentence out of the Exchange Fund to the
holders of Certificates upon surrender of the Certificates and letters of
transmittal from the holders of Island Shares and to the holders of Island
Options who have executed the agreements contemplated by Section 5.2(iv) hereof
in accordance with Section 2.10(ii). Payments to the holders of Dissenting
Shares shall be made as required by Chapter 658, Florida Statutes, and the
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National Bank Act. Subject to holding sufficient cash to make prompt payments to
holders of Island Shares and/or Island Options, the Transfer Agent shall invest
the Exchange Fund in a money market account with 1st United. Bancorp shall bear
the risk of any investment losses by the Transfer Agent and shall contribute
additional funds if necessary to pay all of the Merger Consideration and the
payments due to the holders of Dissenting Shares. The Exchange Fund shall not be
used for any other purpose, except as provided in this Agreement.
(ii) Within five (5) business days after the Effective Time the
Transfer Agent shall mail to each record holder of an outstanding Certificate or
Certificates, a form letter of transmittal approved by Island and Bancorp (which
as to the Certificates shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon proper delivery of
the Certificates to the Transfer Agent) and instructions for use in effecting
the surrender of the Certificates. Upon the delivery of a transmittal letter by
each holder of Certificates duly executed and properly completed in full and, if
required by Bancorp signature medallion guaranteed, and surrender to the
Transfer Agent of the Certificate, the holder of such Certificates shall be
entitled to receive in exchange therefor Bancorp Purchase Stock in the amount
and proportions provided in Section 2.6(ii), and such Certificate shall
forthwith be canceled. As soon as practicable after the Effective Time the
Transfer Agent shall transfer to each holder of an Island Option who has
executed an agreement as contemplated in Section 5.2(iv) the amount and portion
of the Merger Consideration provided in Section 2.6(ii). No interest will be
paid or accrued on the cash payable upon surrender of the Island Option or
Certificate. If payment or delivery of Merger Consideration is to be made to a
person other than the person in whose name the Certificate surrendered is
registered, it shall be a condition of payment that the Certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such payment shall pay any transfer or other
taxes required by reason of the payment and delivery of Merger Consideration to
a person other than the registered holder of the Certificate surrendered or
establish to the satisfaction of Bancorp that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
2.10, each Island Option the holder of which has executed an agreement as
contemplated in Section 2.6(ii) and Certificate (other than Certificates
representing Dissenting Shares) shall represent for all purposes the right to
receive the Merger Consideration without any interest thereon. From and after
the Effective Time, no Certificates or Island Options shall represent any right
or interest in Island and shall represent only the right to receive Bancorp
Stock in accordance with the provisions of this Agreement.
(iii) Bancorp shall not pay any dividend or make any distribution on
Bancorp Purchase Stock to any Island Stockholder until the Island Stockholder
surrenders for exchange its Certificates. Bancorp shall instead pay the dividend
or make the distribution to the Transfer Agent in trust for the benefit of the
Island Stockholder to be distributed to the Island Stockholder on surrender of
the Certificates and such dividends or distributions shall become a part of the
Exchange Fund. In no event shall a Island Stockholder or holder of Island
Options be entitled to interest or earnings on the dividends or distributions
held by the Transfer Agent. Any such interest or earnings shall be paid to
Bancorp.
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(iv) After the Effective Time, the stock transfer ledger of Island
shall be closed and there shall be no transfers on the stock transfer books of
Island of the Island Shares which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to
Bancorp or 1st United, they shall be promptly presented to the Transfer Agent
and exchanged as provided above.
(v) Any portion of the Exchange Fund (including the proceeds of any
investments thereof) that remains unclaimed by the shareholders of Island for
six months after the Effective Time shall be paid to Bancorp, and the holders of
Island Shares not theretofore presented to the Transfer Agent shall look to
Bancorp as a general creditor only, and not to the Transfer Agent, for the
payment of any portion of the Exchange Fund in respect of such Island Shares.
5. Section 5.2(iv) of the Agreement is hereby amended to read as
follows:
(iv) within sixty (60) days after the Effective Date, agreements in
form and substance reasonably acceptable to Bancorp pursuant to which E. Xxxxxxx
Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxx X. Xxxxxxx, Xx., E. Xxxxxx
Xxxxxxx, Xx. and each other present or former executive officer or director of
Island who is the holder of Island Options, other than Xxxxxxx Xxxxxx, agrees to
accept the consideration provided in Section 2.6(ii)(a) in exchange for all of
the rights of that holder of Island Options under the agreements pursuant to
which those Island Options were granted, including, without limitation, all
rights to Island Stock or Bancorp Shares other than Bancorp Purchase Shares
allocated pursuant to Section 2.6(ii)(a). Island shall exert best efforts to
obtain such an agreement from Xxxxxxx Xxxxxx within sixty (60) days after the
Effective Date. Within ten (10) days after the date the Definitive Island Proxy
Materials are mailed to the Island Stockholders, Island shall obtain such
agreements from each of the other holders of Island Options.
6. Except as expressly provided herein, nothing in this Amendment shall
be construed to modify or supersede any of the Parties' rights and obligations
previously set forth in the Agreement. In the event the terms of the Agreement
and this Amendment conflict, the terms of this Amendment shall control. The
Agreement, in conjunction with this Amendment, shall represent the Parties
complete understanding on the subject matters contained therein.
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7. This Agreement may be executed in any number of counterparts, each
of which, when so executed, shall constitute an original copy hereof, but all of
which together shall constitute but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first provided above.
1ST UNITED BANCORP
By: /s/ XXXX XXXXXX
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Title: Treasurer
Date: 2/25/97
1ST UNITED BANK
By: /s/ XXXX XXXXXX
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Title:Executive Vice President
Date: 2/25/97
ISLAND NATIONAL BANK AND TRUST COMPANY
By: /s/ E. XXXXXXX XXXXXX
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Title: President
Date: 2/25/97
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