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EXHIBIT 10.4.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into as of March 2, 1998, by and between REPUBLIC BANCSHARES, INC. ("Republic"),
a corporation organized and existing under the laws of the State of Florida,
with its principal office located in St. Petersburg, Florida; and BANKERS
SAVINGS BANK, F.S.B. ("BSB"), a federal savings bank organized and existing
under the laws of the United States of America, with its principal office
located in Coral Gables, Florida.
PREAMBLE
The Boards of Directors of Republic and BSB are of the opinion that the
transactions described herein are in the best interests of the parties to this
Agreement and their respective stockholders. This Agreement provides for the
merger (the "Merger") of BSB with and into Republic's wholly-owned subsidiary,
Republic Bank (the "Bank"). At the effective time of such Merger, the
outstanding shares of the capital stock of BSB shall be converted into shares of
the common stock of Republic (except as provided herein). The transactions
described in this Agreement are subject to the approvals of the stockholders of
BSB, the Board of Governors of the Federal Reserve System, the Federal Deposit
Insurance Corporation, and the Florida Department of Banking and Finance, prior
notice to the Office of Thrift Supervision and the satisfaction of certain other
conditions described in this Agreement. It is the intention of the parties to
this Agreement that the Merger for federal income tax purposes shall qualify as
a "reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code.
Certain terms used in this Agreement are defined in Section 10.1 of this
Agreement.
NOW, THEREFORE, in consideration of the above and the mutual warranties,
representations, covenants and agreements set forth herein, the Parties agree as
follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF SHARE EXCHANGE
1.1 MERGER. Subject to the terms and conditions of this Agreement, at the
Effective Time, BSB will merge with and into the Bank in accordance with the
provisions of Section 655.412 of the Florida Financial Institutions Code (the
"Code") and Part 552 of the Rules and Regulations of the Office of Thrift
Supervision (the "OTS Regulations") and all outstanding shares of BSB Common
Stock shall be exchanged into shares of Republic Common Stock and with the
effect provided in Section 655.417 of the Code and Section 552.13 of the OTS
Regulations. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the respective Boards of
Directors of BSB and Republic.
1.2 TIME AND PLACE OF CLOSING. The closing for the Merger (the "Closing")
will take place at 9:00 A.M. on the date that the Effective Time occurs (or the
immediately preceding day if the Effective Time is earlier than 9:00 A.M.), or
at such other time as the parties, acting through their duly authorized
officers,
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may mutually agree. The place of Closing shall be at such location as
may be mutually agreed upon by the parties.
1.3 EFFECTIVE TIME. The Merger contemplated by this Agreement shall become
effective on the date and at the time set forth in the Certificate of Merger
issued by the Department pursuant to Section 658.45 of the Code (the "Effective
Time"). Subject to the terms and conditions hereof, unless otherwise mutually
agreed upon in writing by the duly authorized officers of each party, the
parties shall use their reasonable efforts to cause the Effective Time to occur
on or before the tenth business day (as designated by Republic) following the
last to occur of (i) the effective date (including expiration of any applicable
waiting period) of the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger; (ii) the date on which the
stockholders of BSB approve the matters relating to this Agreement required to
be approved by such stockholders by applicable law.
ARTICLE 2
MANNER OF CONVERTING SHARES
2.1 CONVERSION OF SHARES. Subject to the provisions of this Article 2, at
the Effective Time, by virtue of the Merger and without any action on the part
of Republic or BSB, or the stockholders of either of the foregoing, the shares
of the constituent entities shall be converted as follows:
(a) Each share of Republic Common Stock and Republic Preferred Stock
issued and outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
(b) Each share of BSB Common Stock (excluding shares held by any BSB
Company or any Republic Company, in each case other than in a fiduciary capacity
or as a result of debts previously contracted or shares held by stockholders who
perfect their dissenters' rights of appraisal) issued and outstanding at the
Effective Time shall cease to be outstanding and shall be converted into and
exchanged for shares of Republic Common Stock at an Exchange Ratio. The Exchange
Ratio of BSB Common Stock shares into Republic Common Stock shares will be
determined by (a) taking the difference between (i) of BSB's total common
equity at December 31, 1997 and (ii) any bonuses paid to officers, directors, or
employees of BSB upon a change of control after deducting the equivalent
corporate taxes on any such bonus payments; (b) adding to (or subtracting from)
any profits (or losses) though the month-end prior to the date that the Merger
is approved by all applicable Regulatory Authorities; (c) multiplying this sum
by 1.7; (d) adding to the resulting product the difference between (i) the
Appraised Value of Real Estate (as defined below) less (ii) the Book Value of
Real Estate (as defined below) on December 31, 1997; (e) dividing the resulting
sum by BSB's total number of shares of Common Stock outstanding; and (f)
dividing the resulting quotient by the Market Value of Republic's Common Stock
(as defined below). "Appraised Value of Real Estate" is defined as the value of
real estate owned by BSB at 0000 Xxxxx XxXxxx Xxxx., either (a) as appraised
by a recognized real estate appraisal firm, such appraisal being within a range
of $5.8 million and $6.2 million, or (b) as otherwise mutually agreed to by
the parties. "Book Value of Real Estate" is defined as the net of cost less
depreciation of the real estate owned by BSB at 0000 Xxxxx xx Xxxx Xxxx., as
reflected in BSB's opinion audit for the year ended December 31, 1997. "Market
Value of Republic's Common Stock" is defined as $25.00 unless the reported
average closing prices by the National Market for the twenty (20) consecutive
trading days ending on the third business day immediately preceding the
Effective Time ("Twenty Day Average Market Price") for a share of Republic
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Common Stock is greater than $27.50 or lower than $22.50, in which case the
Market Value of Republic's Common Stock is the mean between the Twenty Day
Average Market Price and $25.00.
(c) Each of the options to purchase BSB Common Stock issued and
outstanding at the Effective Time, which options and their respective dates of
grant are disclosed in Section 2.1 of the BSB Disclosure Memorandum (the "BSB
options"), shall cease to be outstanding and shall be converted into and
exchanged for the Right to acquire Republic Common Stock on substantially the
same terms applicable to the BSB options. The number of shares of Republic
Common Stock to be issued pursuant to the exercise of such options shall equal
the number of shares of BSB Common Stock subject to such options multiplied by
the Exchange Ratio, provided that no fractions of shares of Republic Common
Stock shall be issued, and the number of shares of Republic Common Stock to be
issued upon the exercise of the BSB options, if a fractional share exists, shall
equal the number of whole shares obtained by rounding to the nearest whole
number, giving account to such fraction. The exercise price for the acquisition
of each share of Republic Common Stock shall be the exercise price for each
share of BSB common stock subject to such options divided by the Exchange Ratio,
provided that the aggregate purchase price shall be adjusted as appropriate for
any rounding to whole shares that may be done.
(d) Provided that the stock option plan pursuant to which the BSB
options were issued permits such practice, holders of the BSB options will also
have the ability to convert their options directly into shares of Republic
Common Stock. The number of shares of Republic Common Stock that will be
issuable upon conversion of BSB options pursuant to this subparagraph (d) as
converted into options to acquire shares of Republic Common Stock as provided
above, will be (a) the difference between (i) the Market Value of Republic
Common Stock and (ii) the exercise price for a share of Republic Common Stock as
determined pursuant to (c) above, divided by (b) Market Value of Republic Common
Stock, such quotient to be multiplied by the number of shares of Republic Common
Stock subject to such options.
2.2 ANTI-DILUTION PROVISIONS. In the event Republic changes the number of
shares of Republic Common Stock issued and outstanding prior to the Effective
Time as a result of a stock split, stock dividend or similar recapitalization
with respect to such stock and the record date therefore (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be prior to
the Effective Time, the Exchange Ratio shall be proportionately adjusted.
2.3 SHARES HELD BY BSB OR REPUBLIC. Each of the shares of BSB Common Stock
held by any BSB Company or by any Republic Company, in each case other than in a
fiduciary capacity or as a result of debts previously contracted, shall be
canceled and retired at the Effective Time and no consideration shall be issued
in exchange therefor.
2.4 FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, each holder of shares of BSB Common Stock exchanged pursuant to the
Merger who would otherwise have been entitled to receive a fraction of a share
of Republic Common Stock (after taking into account all certificates delivered
by such holder) shall receive, in lieu thereof, cash (without interest) in an
amount equal to such fractional part of a share of Republic Common Stock
multiplied by the Market Value of Republic Common Stock at the Effective Time.
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No such holder will be entitled to dividends, voting rights or any other rights
as a stockholder in respect of any fractional shares.
2.5 DISSENTING STOCKHOLDERS. Any holder of shares of BSB Common Stock who
perfects such holder's dissenters' rights of appraisal of accordance with and as
contemplated by Section 552.14 of the OTS Regulations and, to the extent not
inconsistent therewith, Section 658.44 of the Code, shall be entitled to receive
the value of such shares in cash as determined pursuant to such regulatory
provisions; provided that no such payment shall be made to any dissenting
stockholder unless and until such dissenting stockholder has complied with the
applicable provisions of the OTS Regulations and the Code and surrendered to BSB
the certificate or certificates representing the shares for which payment is
being made. In the event that after the Effective Time a dissenting stockholder
of BSB fails to perfect, or effectively withdraws or loses, such holder's right
to appraisal and of payment for such holder's shares, Republic shall issue and
deliver the consideration to which such holder of shares of BSB Common Stock is
entitled under this Article 2 (without interest) upon surrender by such holder
of the certificate or certificates representing shares of BSB Common Stock held
by such holder.
ARTICLE 3
EXCHANGE OF SHARES
3.1 EXCHANGE PROCEDURES. Promptly after the Effective Time, Republic shall
cause the exchange agent selected by Republic (the "Exchange Agent"),
ChaseMellon Shareholders Services, to mail to the former stockholders of BSB
appropriate transmittal materials (which shall specify that delivery shall be
effected, and risk of loss and title to the certificates theretofore
representing shares of BSB Common Stock shall pass, only upon proper delivery of
such certificates to the Exchange Agent). After the Effective Time, each holder
of shares of BSB Common Stock (other than shares to be canceled pursuant to
Section 2.3 of this Agreement or as to which dissenters' rights have been
perfected as provided in Section 2.5 of this Agreement) issued and outstanding
at the Effective Time shall surrender the certificate or certificates
representing such shares to the Exchange Agent and shall promptly upon surrender
thereof receive in exchange therefor the consideration provided in Section 2.1
of this Agreement, together with all undelivered dividends or distributions in
respect of such shares (without interest thereon) pursuant to Section 3.2 of
this Agreement. To the extent required by Section 2.4 of this Agreement, each
holder of shares of BSB Common Stock issued and outstanding at the Effective
Time also shall receive, upon surrender of the certificate or certificates
representing such shares, cash in lieu of any fractional share of Republic
Common Stock to which such holder may be otherwise entitled (without interest).
Republic shall not be obligated to deliver the consideration to which any former
holder of BSB Common Stock is entitled as a result of the Merger until such
holder surrenders such holder's certificate or certificates representing the
shares of BSB Common Stock for exchange as provided in this Section 3.1, or
otherwise complies with the procedures of the Exchange Agent with respect to
lost, stolen or destroyed certificates. The certificate or certificates of BSB
Common Stock so surrendered shall be duly endorsed as the Exchange Agent may
require. Any other provision of this Agreement notwithstanding, neither
Republic, BSB nor the Exchange Agent shall be liable to a holder of BSB Common
Stock for any amounts paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property law following expiration
of the time period provided therein.
3.2 RIGHTS OF FORMER BSB STOCKHOLDERS. At the Effective Time, the stock
transfer books of BSB shall be closed as to holders of BSB Common Stock
immediately prior to the Effective Time and no transfer of
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BSB Common Stock by any such holder shall thereafter be made or recognized.
Until surrendered for exchange in accordance with the provisions of Section 3.1
of this Agreement, each certificate theretofore representing shares of BSB
Common Stock (other than shares to be canceled pursuant to Section 2.3 of this
Agreement or as to which dissenters' rights have been perfected as provided in
Section 2.5 of this Agreement) shall from and after the Effective Time represent
for all purposes only the right to receive the consideration provided in
Sections 2.1 and 2.4 of this Agreement in exchange therefor, subject, however to
the Bank's obligation to pay any dividends or make any other distributions with
a record date prior to the Effective Time which have been declared or made by
BSB in respect of share shares of BSB Common Stock in accordance with the terms
of this Agreement and which remain unpaid at the Effective Time. To the extent
permitted by law, former stockholders of record of BSB shall be entitled to vote
after the Effective Time at any meeting of Republic stockholders the number of
whole shares of Republic Common Stock into which their respective shares of BSB
Common Stock are converted, regardless of whether such holders have exchanged
their certificates representing BSB Common Stock for certificates representing
Republic Common Stock in accordance with the provisions of this Agreement.
Whenever a dividend or other distribution is declared by Republic on the
Republic Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on all
shares issuable pursuant to this Agreement, but no dividend or other
distribution payable to the holders of record of Republic Common Stock as of any
time subsequent to the Effective Time shall be delivered to the holder of any
certificate representing shares of BSB Common Stock issued and outstanding at
the Effective Time until such holder surrenders such certificate for exchange as
provided Section 3.1 of the Agreement. However, upon surrender of such BSB
Common Stock certificate, both the Republic Common Stock certificate (together
with all such undelivered dividends or other distributions without interest) and
any undelivered dividends and cash payments to be paid for fractional share
interests (without interest) shall be delivered and paid with respect to each
share represented by such certificate.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BSB
BSB hereby represents and warrants to Republic:
4.1 ORGANIZATION, STANDING AND POWER.
(a) BSB is a federal savings bank duly organized, validly existing,
and in good standing under the Laws of the United States of America, and has the
power and authority to carry on its business as now conducted and to own, lease
and operate its material Assets. BSB is duly qualified or licensed to transact
business as a foreign corporation in good standing in the states and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BSB.
(b) BSB is an "insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, the deposits of which are
insured by the Savings Association Fund, and is a member in good standing of the
Federal Home Loan Bank of Atlanta ("FHLB").
4.2 AUTHORITY; NO BREACH BY AGREEMENT.
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(a) BSB has the power and authority necessary to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein, including the
Merger, have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of BSB, subject to the approval of this Agreement
by the required vote of the holders of outstanding shares of BSB Common Stock,
and consummation of the Merger by BSB. Subject to such requisite stockholder
approval, this Agreement represents a legal, valid binding obligation of BSB,
enforceable against BSB in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by BSB, nor
the consummation by BSB of the transactions contemplated hereby, nor compliance
by BSB with any of the provisions hereof, will (i ) conflict with or result in a
breach of any provision of BSB's Charter or Bylaws; or (ii) constitute or result
in a Default under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any BSB Company under, any Contract or
Permit of any BSB Company, where such Default or Lien, or any failure to obtain
such Consent, is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on BSB; or (iii) subject to receipt of the requisite
Consents referred to in Section 8.1(b) of this Agreement, violate any Law or
Order applicable to any BSB Company or any of their respective material Assets.
( c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities laws, and rules of
the NASD, and other than Consents required from Regulatory Authorities, and
other than Consents, filings or notifications which, if not obtained or made,
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on BSB, no notice to, filing with, or Consent of, any public body
or authority is necessary for the consummation by BSB of the Share Exchange and
the other transactions contemplated in this Agreement.
4.3 CAPITAL STOCK.
(a) The authorized capital stock of BSB consists of 10,000,000 shares
of BSB Common Stock, of which no more than 692,333 shares are issued and
outstanding as of the date of this Agreement. The stock register of BSB reflects
690,333 shares outstanding although the records of BSB's stock transfer agent
reflects 692,333 shares outstanding. BSB shall attempt to reconcile the
discrepancy prior to closing and shall provide Republic with the accurate number
of outstanding shares; provided, that if it is unable to do so, the
consideration to be paid to the shareholders of BSB in exchange for their shares
of BSB Common Stock shall be based upon 692,333 outstanding shares (or such
greater number as shall be determined by BSB after investigation), plus the
number of additional shares issued upon exercise of options as contemplated
herein. All of the issued and outstanding shares of capital stock of BSB are
duly and validly issued and outstanding and are fully paid and nonassessable
under the OTS Regulations. None of the outstanding shares of capital stock of
BSB has been issued in violation of any preemptive rights of the current or past
stockholders of BSB. In the event any BSB options are exercised subsequent to
January 1, 1998, the option price shall be added to BSB's equity as calculated
in paragraph 2.1 (b), and consequently, the number of outstanding shares will be
increased to the number resulting from the exercise of the option.
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(b) Except as set forth in Section 4.3(a) of this Agreement, there are
no shares of capital stock or other equity securities of BSB outstanding and
other than the options disclosed in Section 2.1 of the BSB Disclosure Memorandum
there are no outstanding rights relating to the capital stock of BSB.
4.4 BSB SUBSIDIARIES. BSB has disclosed in Section 4.4 of the BSB
Disclosure Memorandum all of the BSB Subsidiaries as of the date of this
Agreement. BSB or one of its Subsidiaries owns all of the issued and outstanding
shares of capital stock of each BSB Subsidiary. No equity securities of any BSB
Subsidiary are or may become required to be issued (other than to another BSB
Company) by reason of any Rights, and there are no Contracts by which any BSB
Subsidiary is bound to issue (other than to another BSB Company) additional
shares of its capital stock or Rights or by which any BSB Company is or may be
bound to transfer any shares of the capital stock of any BSB Subsidiary (other
than to another BSB Company). There are no Contracts relating to the rights of
any BSB Company to vote or to dispose of any shares of the capital stock of any
BSB Subsidiary. All of the shares of capital stock of each BSB Subsidiary held
by an BSB Company are fully paid and nonassessable under the applicable
corporation law of the jurisdiction in which such Subsidiary is incorporated or
organized and are owned by the BSB Company free and clear of any lien. Each BSB
Subsidiary is a corporation, duly organized, validly existing, and in good
standing under the laws of the jurisdiction in which it is incorporated or
organized, and has the corporate power and authority necessary for it to own,
lease and operate its Assets and to carry on its business as now conducted. Each
BSB Subsidiary is duly qualified or licensed to transact business as a foreign
corporation in good standing in the states of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BSB.
4.5 FINANCIAL STATEMENTS.
(a) BSB has filed and made available to Republic all forms, reports
and documents required to be filed by BSB with the OTS since December 31, 1993
(collectively, the "BSB Reports"). The BSB Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the OTS;
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such BSB Reports or necessary in order to make the
statements in such BSB Reports, in light of the circumstances under which they
were made, not misleading. Except for BSB Subsidiaries that are registered as a
broker, dealer or investment advisor, none of BSB's Subsidiaries is required to
file any forms, reports or other documents with the OTS.
(b) Each of the BSB Financial Statements (including, in each case, any
related note) and schedules contained in the BSB Reports, including any BSB
Reports filed after the date of this Agreement until the Effective Time,
complied as to form in all material respects with the applicable published rules
and regulations of the OTS with respect thereto, was prepared in accordance with
GAAP applied on a consistent basis throughout the periods involved (except as
may be indicated in the notes to such financial statements, or in the case of
unaudited statements, as permitted), and fairly presented the consolidated
financial position of BSB and its Subsidiaries as of the respective dates and
the consolidated results of its operations and cash flows
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for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount.
4.6 ABSENCE OF UNDISCLOSED LIABILITIES. To the knowledge of BSB, and
except as disclosed in Section 4.6 of the BSB Disclosure Memorandum, no BSB
Company has any liabilities that are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on BSB, except liabilities which are
accrued or reserved against in the consolidated balance sheets of BSB as of
December 31, 1997 included in the BSB Financial Statements or reflected in the
notes thereto. No BSB Company has incurred or paid any Liability since December
31, 1997, except for such liabilities incurred or paid in the ordinary course of
business consistent with past business practice and which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
BSB.
4.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1997, except
as disclosed in Section 4.7 of the BSB Disclosure Memorandum, (i) there have
been no events, changes or occurrences which have had, or are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on BSB; and
(ii) the BSB Companies have not taken any action, or failed to take any action,
prior to the date of this Agreement, which action or failure, if taken after the
date of this Agreement, would represent or result in a material breach or
violation of any of the covenants and agreements of BSB provided in Article 7 of
this Agreement.
4.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of any of the
BSB Companies have been timely filed or requests for extensions have been timely
filed, granted and have not expired for periods ended on or before December 31,
1996, and on or before the date of the most recent fiscal year end immediately
preceding the Effective Time, except to the extent that all such failures to
file, taken together, are not reasonably likely to have a Material Adverse
Effect on BSB, and all Tax Returns filed are complete and accurate in all
material respects. All taxes shown on filed Tax Returns have been paid. There is
no audit examination, deficiency or refund litigation with respect to any Taxes
that is reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on BSB, except as
reserved against in the BSB Financial Statements delivered prior to the date of
this Agreement. All Taxes and other liabilities due with respect to completed
and settled examinations or concluded litigation have been paid.
(b) None of the BSB Companies has executed an extension or waiver of
any statute of limitations on the assessment or collection of any Tax due that
is currently in effect.
(c ) Adequate provision for any Taxes due or to become due for any of
the BSB Companies for the period or periods through and including the date of
the respective BSB Financial Statements has been made and is reflected on such
BSB Financial Statements.
(d) Deferred Taxes of the BSB Companies have been adequately provided
for in the BSB Financial Statements.
(e) Each of the BSB Companies is in compliance with, and its records
contain all information and documents (including properly completed IRS Forms
W-9) necessary to comply with, all applicable
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information reporting and tax withholding requirements under federal, state and
local tax Laws, and such records identify with specificity all accounts subject
to backup withholding under Section 3406 of the Internal Revenue Code, except
for such instances of noncompliance and such omissions as are not reasonably
likely to have individually or in the aggregate, a Material Adverse Effect on
BSB.
(f) None of the BSB Companies has made any payments, is obligated to
make any payments, or is a party to any contract, agreement or other arrangement
that could obligate it to make any payments that would be disallowed as a
deduction under Section 280G or 162(m) of the Internal Revenue Code.
(g) There are no Liens with respect to Taxes upon any of the Assets of
the BSB Companies, other than Liens for Taxes on real estate of BSB obtained as
a result of or in lieu of foreclosures, which Liens are reflected in the
carrying value of the Assets on the BSB Financial Statements, and Liens on real
estate securing loans made by BSB.
(h) Except as contemplated by this Agreement, there has not been an
ownership change, as defined in Internal Revenue Code Section 382(g), of the BSB
Companies that occurred during or after any taxable period in which the BSB
Companies incurred a net operating loss that carries over to any Taxable Period
ending after December 31, 1994.
(i) No BSB Company has filed any consent under Section 341(f) of the
Internal Revenue Code concerning collapsible corporations.
(j) All material elections with respect to Taxes affecting the BSB
Companies as of the date of this Agreement have been or will be timely made as
set forth in Section 4.8 of the BSB Disclosure Memorandum. After the date
hereof, no Material election with respect to Taxes will be made by BSB without
the prior consultation with Republic.
(k) No BSB Company has or has had a permanent establishment in any
foreign country, as defined in any applicable tax treaty or convention between
the BSB States and such foreign country.
4.9 ASSETS. Except as disclosed in Section 4.9 of the BSB Disclosure
Memorandum or reflected on the BSB Financial Statements, the BSB Companies have
good and marketable title, free and clear of all Liens, to all of their
respective Assets that are Material to the conduct of their business. All
tangible properties that are Material to the businesses of the BSB Companies are
in good condition, reasonable wear and tear excepted, and are usable in the
ordinary course of business consistent with BSB's past practices. All Assets
which are Material to BSB's business on a consolidated basis, held under leases
or subleases by any of the BSB Companies, are held under valid written contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought), and each such Contract is in full force and effect.
A list of insurance policies maintained by BSB is set forth in Section 4.9 of
the BSB Disclosure Memorandum. Except as disclosed in Section 4.9 of the BSB
Disclosure Memorandum, none of the BSB Companies has received notice from any
insurance carrier that (i) such insurance will be canceled or that coverage
thereunder will be reduced or eliminated; or (ii) premium costs with respect to
such policies of insurance will be substantially increased.
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There are presently no claims pending under such policies of insurance and no
notices have been given by an BSB Company under such policies. The Assets of the
BSB Companies include all assets required to operate the business of the BSB
Companies as presently conducted.
4.10 ENVIRONMENTAL MATTERS.
(a) To the knowledge of BSB, each BSB Company, its Participation
Facilities and its Loan Properties are and have been in compliance with all
environmental Laws, except for violations which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BSB and/or
are set forth in Section 4.10 of the BSB Disclosure Memorandum.
(b) There is no litigation pending or to the knowledge of BSB,
threatened before any court, governmental agency or authority or other forum in
which any BSB Company or any of its Loan Properties or Participation Facilities
(or any BSB Company in respect of any such Loan Property or Participation
Facility) has been or, with respect to threatened litigation, may be named as a
defendant or potentially responsible party (i) for alleged noncompliance
(including by any predecessor) with any environmental law; or (ii) relating to
the release into the environment of any hazardous material, whether or not
occurring at, on, under or involving a site owned, leased or operated by any BSB
Company or any of its Loan Properties or Participation Facilities.
(c) To the knowledge of BSB there have been no releases of hazardous
material in, on, under or affecting any Participation Facility or Loan Property
of an BSB Company, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BSB.
4.11 COMPLIANCE WITH LAWS. BSB is a federal savings bank organized under
the HOLA and the OTS Regulations. Each BSB Company has in effect all Permits
necessary for it to own, lease or operate its material assets and to carry on
its business as now conducted, except for those Permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on BSB, and there has occurred no default under any such Permit,
other than defaults which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on BSB. None of the BSB Companies:
(a) is in violation of any laws, orders or permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on BSB; and
(b) except as disclosed in Section 4.11 of the BSB Disclosure
Memorandum, has received any notification or communication from any agency
or department of federal, state or local government or any regulatory
authority or the staff thereof (i) asserting that any BSB Company is not in
compliance with any of the Laws or orders which such governmental authority
or regulatory authority enforces, where such noncompliance is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect
on BSB; (ii) threatening to revoke any Permits, the revocation of which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on BSB; or (iii) requiring any BSB Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, which restricts materially the conduct
of its business, or in any manner relates to
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its capital adequacy, its credit or reserve policies, its management or the
payment of dividends.
4.12 LABOR RELATIONS. No BSB Company is the subject of any litigation
asserting that it or any other BSB Company has committed an unfair labor
practice (within the meaning of the National Labor Relations Act or comparable
state law) or seeking to compel it or any other BSB Company to bargain with any
labor organization as to wages or conditions of employment, nor is there any
strike or other labor dispute involving any BSB Company, pending or threatened,
or to the knowledge of BSB, is there any activity involving any BSB Company's
employee's seeking to certify a collective bargaining unit or engaging in any
other organization activity.
4.13 EMPLOYEE BENEFIT PLANS.
(a) BSB has disclosed in Section 4.13 of the BSB Disclosure
Memorandum, and has delivered or made available to Republic prior to the
execution of this Agreement copies in each case of, all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus or other incentive plan, all other written
employee programs, arrangements or agreements, all medical, vision, dental or
other health plans, all life insurance plans and all other employee benefit
plans or fringe benefit plans, including "employee benefit plans" as that term
is defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored
in whole or in part by, or contributed to by any Applied Company or ERISA
Affiliate (as defined below) thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors or other beneficiaries
and under which employees, retirees, dependents, spouses, directors, independent
contractors or other beneficiaries are eligible to participate (collectively,
the "BSB Benefit Plans"). None of the BSB Benefit Plans is an "employee pension
benefit plan," as that term is defined in Section 3(2) of ERISA.
(b) No BSB Company has any liability for retiree health and life
benefits under any of the BSB Benefit Plans and there are no restrictions on the
rights of such BSB Company to amend or terminate any such Plan without incurring
any liability thereunder, which liability is reasonably likely to have a
Material Adverse Effect on BSB.
(c) Except as disclosed in Section 4.13 of the BSB Disclosure
Memorandum, neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation, golden parachute or
otherwise) becoming due to any director or any employee of any BSB Company from
any BSB Company under any BSB Benefit Plan or otherwise; (ii) increase any
benefits otherwise payable under any BSB Benefit Plan; or (iii) result in any
acceleration of the time of payment or vesting of any such benefit, where such
payment, increase or acceleration is reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on BSB.
(d) The actuarial present values of all accrued deferred compensation
entitlement (including entitlement under any executive compensation,
supplemental retirement or employment agreement) of employees and former
employees of any BSB Company and their respective beneficiaries, other than
entitlement accrued pursuant to funded retirement plans subject to the
provisions of Section 412 of the Internal
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Revenue Code or Section 302 of ERISA, have been fully reflected on the BSB
Financial Statements to the extent required by and in accordance with GAAP.
(e) There are no Material claims pending (or, to the Knowledge of BSB,
threatened in a writing which is under review, or has been reviewed within
twelve (12) months prior to the date of this Agreement, by counsel to BSB or
BSB's Director of Human Resources) by or on behalf of any BSB Benefit Plan, by
any employee or beneficiary covered under any BSB Benefits Plan, or otherwise
concerning the operation or administration of any BSB Benefit Plan (other than
routine claims for benefits).
4.14 MATERIAL CONTRACTS. Except as otherwise reflected in the BSB Financial
Statements and as disclosed in Section 4.14 of the BSB Disclosure Memorandum,
none of the BSB Companies, nor any of their respective assets, businesses or
operations is a party to or is bound or affected by or receives benefits under
(i) any employment, severance, terminating, consulting or retirement contract
providing for aggregate payments to any person in any calendar year in excess of
$100,000; and (ii) any contract relating to the borrowing of money by any BSB
Company or the guarantee by any BSB Company of any such obligation (other than
contracts evidencing deposit liabilities, purchases of federal funds, FHLB
advances, fully-secured repurchase agreements and advances, trade payables and
contracts relating to borrowings or guarantees made in the ordinary course of
business); (together with all contracts referred to in Section 4.8 and 4.13(a)
of this Agreement, the "BSB Contracts"). With respect to each BSB Contract: (i)
the contract is in full force and effect; (ii) no BSB Company is in default
thereunder, other than defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BSB; (iii) no BSB
Company has repudiated or waived any material provision of any such contract;
and (iv) no other party to any such contract is, to the knowledge of BSB, in
default in any respect, other than defaults which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on BSB or has
repudiated or waived any material provision thereunder. Except for FHLB
advances, all of the indebtedness of any BSB Company for money borrowed is
prepayable at any time by such BSB Company without penalty or premium.
4.15 LEGAL PROCEEDINGS.
(a) Except as disclosed in Section 4.15(a) of the BSB Disclosure
Memorandum, there is no litigation instituted or pending or, to the knowledge of
BSB, threatened (or unasserted but considered probable of assertion and which if
asserted would have at least a reasonable probability of an unfavorable outcome)
against any BSB Company, or against any Asset, employee benefit plan, interest
or right of any of them, that is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on BSB, nor are there any orders of any
regulatory authorities, other governmental authorities, or arbitrators
outstanding against any BSB Company, that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BSB.
(b) Section 4.15(b) of the BSB Disclosure Memorandum includes a
summary report of all litigation as of the date of this Agreement to which any
BSB Company is a party and which names an BSB Company as a defendant or
cross-defendant.
4.16 REPORTS. Since January 1, 1995, or the date of organization if later,
each BSB Company has timely filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with any Regulatory Authorities (except, in the case of state securities
authorities,
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failures to file which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BSB). As of their respective dates, each
of such reports and documents, including the financial statements, exhibits and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document did not, in all
material respects, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
4.17 STATEMENTS TRUE AND CORRECT. None of the information supplied or to be
supplied by any BSB Company or any Affiliate thereof for inclusion in the
Registration Statement to be filed by Republic with the SEC will, when the
Registration Statement becomes effective, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any BSB Company or any Affiliate thereof for inclusion in the Proxy
Statement/Prospectus to be mailed to BSB's stockholders in connection with the
Stockholders' Meeting, and any other documents to be filed by an BSB Company or
any Affiliate thereof with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy
Statements/Prospectus, when first mailed to the stockholders of BSB, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or, in the case of the Proxy
Statements/Prospectus or any amendment thereof or supplement thereto, at the
time of the Stockholders' Meeting, be false or misleading with respect to any
material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Stockholders' Meetings. All documents that any BSB Company or any
Affiliate thereof is responsible for filing with any regulatory authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable law.
4.18 TAX AND REGULATORY MATTERS. Except as specifically contemplated by
this Agreement, no BSB Company or any Affiliate thereof has taken or agreed to
take any action or has any knowledge of any fact or circumstance that is
reasonably likely to ( i) prevent the transactions contemplated hereby,
including the Share Exchange, from qualifying as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code; or (ii) materially
impede or delay receipt of any consents of Regulatory Authorities referred to in
Section 8.1(b) of this Agreement or result in the imposition of a condition or
restriction of the type referred to in the last sentence of such section.
4.19 CHARTER PROVISIONS. Each BSB Company has taken all action so that the
entering into of this Agreement and the consummation of the Share Exchange and
the other transactions contemplated by this Agreement do not and will not result
in the grant of any rights to any person under the Charter, Articles of
Incorporation, Bylaws or other governing instruments of any BSB Company or
restrict or impair the ability of Republic or any of its Subsidiaries to vote or
otherwise to exercise the rights of a stockholder with respect to shares of any
BSB Company that may be directly or indirectly acquired or controlled by it.
4.20 DERIVATIVES CONTRACTS. Except as disclosed in Section 4.20 of the BSB
Disclosure Memorandum, neither BSB nor any of its Subsidiaries is a party to or
has agreed to enter into an exchange-traded or over-the-counter swap, forward,
future, option, cap, floor or collar financial contract, or any other interest
rate or foreign currency protection contract not included on its balance sheet
which is a financial derivative contract (including various combinations
thereof).
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF REPUBLIC
Republic hereby represents and warrants to BSB as follows:
5.1 ORGANIZATION, STANDING AND POWER. Republic is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its material assets. Republic is
duly qualified or licensed to transact business as a foreign corporation in good
standing in the states and foreign jurisdictions where the character of its
assets or the nature or conduct of its business requires it to be so qualified
or licensed, except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Republic has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Republic.
This Agreement represents a legal, valid and binding obligation of Republic,
enforceable against Republic in accordance with its terms (except in all cases
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Republic
nor the consummation by Republic of the transactions contemplated hereby nor
compliance by Republic with any of the provisions hereof will (i) conflict with
or result in a breach of any provision of Republic's Articles of Incorporation
or By-laws; or (ii) constitute or result in a default under, or require any
Consent pursuant to or result in the creation of any Lien or any asset of any
Republic Company under any contract or Permits of any Republic Company, where
such default or Lien or any failure to obtain such consent is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on
Republic; or (iii) subject to receipt of the requisite consents referred to in
Section 8.1(b) of this Agreement, violate any law or order applicable to any
Republic Company or any of their respective material assets.
(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities laws and rules of the
NASD and other than Consents required from Regulatory Authorities, and other
than Consents, filings or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate a Material Adverse
Effect on Republic, no notice to, filing with or Consent of any public body or
authority is necessary for the consummation by Republic of the Merger and the
other transactions contemplated in this Agreement.
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5.3 CAPITAL STOCK. The authorized capital stock of Republic consists of
20,000,000 shares of Republic Common Stock, of which 7,035,886 shares were
issued and outstanding as of December 31, 1997, and 100,000 shares of Republic
Preferred Stock, of which 75,000 shares were issued and outstanding as of
December 31, 1997. All of the issued and outstanding shares of Republic Common
Stock and Republic Preferred Stock are, and all of the shares of Republic Common
Stock to be issued in exchange for shares of BSB Common Stock upon consummation
of the Merger, when issued in accordance with the terms of this Agreement, will
be, duly and validly issued and outstanding and fully paid and nonassessable
under the FBCA. None of the outstanding shares of Republic Common Stock has
been, and none of the shares of Republic Common Stock to be issued in exchange
for shares of BSB Common Stock upon consummation of the Merger will be issued in
violation of any preemptive rights of the current or past stockholders of
Republic.
5.4 REPUBLIC SUBSIDIARIES. Republic or one of its Subsidiaries owns all of
the issued and outstanding shares of capital stock of each Republic Subsidiary.
No equity securities of any Republic Subsidiary are or may become required to be
issued (other than to another Republic Company) by reason of any Rights, and
there are no Contracts by which any Republic Subsidiary is bound to issue (other
than to another Republic Company) additional shares of its capital stock or
Rights or by which any Republic Company is or may be bound to transfer any
shares of the capital stock of any Republic Subsidiary (other than to another
Republic Company). There are no Contracts relating to the Rights of any Company
to vote or to dispose of any shares of the capital stock of any Republic
Subsidiary. All of the shares of capital stock of each Republic Subsidiary held
by a Republic Company are fully paid and nonassessable under the applicable
corporation law of the jurisdiction in which such Subsidiary is incorporated or
organized and are owned by the Republic Company free and clear of any Lien. Each
Republic Subsidiary is either a bank or a corporation, and is duly organized,
validly existing, and (as to corporations) in good standing under the Laws of
the jurisdiction in which it is incorporated or organized, and has the corporate
power and authority necessary for it to own, lease and operate its Assets and to
carry on its business as now conducted. Each Republic Subsidiary is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States and foreign jurisdictions where the character of its
Assets or the nature or conduct of its business requires it to be so qualified
or licensed, except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic. Each Republic Subsidiary that
is a depository institution is an "insured institution" as defined in the
Federal Deposit Insurance Act and applicable regulations thereunder, and the
deposits in which are insured by the Bank Insurance Fund or Savings Association
Insurance Fund.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Republic has filed and made available to BSB all forms, Reports
and documents required to be filed by Republic and the Bank with the FDIC and
the SEC since December 31, 1993, other than registration statements on Forms S-4
and S-8 (collectively, the "Republic SEC Reports"). The Republic SEC Reports (
i) at the time filed, complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as the case may be; and
(ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such Republic SEC Reports or necessary in order to make
the statements in such Republic SEC Reports, in light of the circumstances under
which they were made, not misleading.
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(b) Each of the Republic Financial Statements (including, in each
case, any related notes) contained in the Republic SEC Reports, including any
Republic SEC Reports filed after the date of this Agreement until the Effective
Time, complied as to form in all material respects with the applicable published
rules and regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC),
and fairly presented the consolidated financial position of Republic and its
Subsidiaries as at the respective dates and the consolidated results of its
operations and cash flows for the periods indicated, except that the unaudited
interim financial statements were or are subject to normal and recurring
year-end adjustments which were not or are not expected to be material in
amount.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. To the Knowledge of Republic, no
Republic Company has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic, except
Liabilities which are accrued or reserved against in the consolidated balance
sheets of Republic as of December 31, 1997 included in the Republic Financial
Statements or reflected in the notes thereto. Except as disclosed in Section 5.6
of the Republic Disclosure Memorandum, no Republic Company has incurred or paid
any Liability since December 31, 1997, except for such Liabilities incurred or
paid in the ordinary course of business consistent with past business practice
and which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Republic.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1997, except
as disclosed in the Republic Financial Statements delivered prior to the date of
this Agreement or in Section 5.7 of the Republic Disclosure Memorandum, ( i)
there have been no events, changes or occurrences which have had, or are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Republic; and (ii) the Republic Companies have not taken any action,
or failed to take any action, prior to the date of this Agreement, which action
or failure, if taken after the date of this Agreement, would represent or result
in a material breach or violation of any of the covenants and agreements of
Republic provided in Article 7 of this Agreement.
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on behalf of any of the
Republic Companies have been timely filed or requests for extensions have been
timely filed, granted and have not expired for periods ended on or before
December 31, 1996, and on or before the date of the most recent fiscal year end
immediately preceding the Effective Time, except to the extent that all such
failures to file, taken together, are not reasonably likely to have a Material
Adverse Effect on Republic, and all Tax Returns filed are complete and accurate
in all material respects. All Taxes shown on filed Tax Returns have been paid.
There is no audit examination, deficiency or refund Litigation with respect to
any Taxes that is reasonably likely to result in a determination that would
have, individually or in the aggregate, a Material Adverse Effect on Republic,
except as reserved against in the Republic Financial Statements delivered prior
to the date of this Agreement. All Taxes and other Liabilities due with respect
to completed and settled examinations or concluded Litigation have been paid.
(b) Adequate provision for any Taxes due or to become due for any of
the Republic Companies for the period or periods through and including the date
of the respective Republic Financial Statements has been made and is reflected
on such Republic Financial Statements.
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(c) Deferred Taxes of the Republic Companies have been adequately
provided for in the Republic Financial Statements.
5.9 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of Republic, each Republic Company, its
Participation Facilities and its Loan Properties are and have been in compliance
with all Environmental Laws, except for violations which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Republic.
(b) There is no Litigation pending or, to the Knowledge of Republic,
threatened before any court, governmental agency or authority or other forum in
which any Republic Company or any of its Loan Properties or Participation
Facilities (or any regions Company in respect of any such Loan Property or
Participation Facility) has been or, with respect to threatened Litigation, may
be named as a defendant or potentially responsible party (i ) for alleged
noncompliance (including by any predecessor) with any Environmental Law; or (ii)
relating to the release into the environment of any Hazardous Material, whether
or not occurring at, on, under or involving any of its Loan Properties or
Participation Facilities, except for such Litigation pending or threatened that
is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Republic.
(c) To the Knowledge of Republic, there have been no releases of
Hazardous Material in, on, under or affecting any Participation Facility or Loan
Property of a Republic Company, except such as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Republic.
5.10 COMPLIANCE WITH LAWS. Republic is duly registered as a bank holding
company under the BHC Act. Each Republic Company has in effect all Permits
necessary for it to own, lease or operate its material Assets and to carry on
its business as now conducted, except for those Permits the absence of which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Republic, and there has occurred no Default under any such
Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic. No
Republic Company:
(a) is in violation of any Laws, Orders or permits applicable to its
business or employees conducting its business, except for violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Republic; and
(b) has received any notification or communication from any agency or
department of federal, state or local government or any Regulatory
Authority or the staff thereof ( i) asserting that any Republic Company is
not in compliance with any of the Laws or Orders which such governmental
authority or Regulatory Authority enforces, where such noncompliance is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Republic; (ii) threatening to revoke any permits, the
revocation of which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic; or (iii) requiring any
Republic Company to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment or memorandum of
understanding, or to adopt any Board resolution or similar undertaking,
which restricts materially the conduct of
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its business, or in any manner relates to its capital adequacy, its credit
or reserve policies, its management or the payment of dividends.
5.11 LEGAL PROCEEDINGS. Except as set forth in Section 5.11 of the Republic
Disclosure Memorandum, there is no Litigation instituted or pending or, to the
Knowledge of Republic, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against any Republic Company, or against any Asset,
interest or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic, nor are
there any Orders of any Regulatory Authorities, other governmental authorities
or arbitrators outstanding against any Republic Company, that are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Republic.
5.12 REPORTS. Since January 1, 1995, or the date of organization if later,
each Republic Company has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with Regulatory Authorities (except, in the case of state securities
authorities, failures to file which are no reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic). As of
their respective dates, each of such reports and documents, including the
financial statements, exhibits and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document did not, in all material respects, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
5.13 STATEMENTS TRUE AND CORRECT. None of the information supplied or to be
supplied by any Republic Company or any Affiliate thereof for inclusion in the
Registration Statement to be filed by Republic with the SEC will, when the
Registration Statement becomes effective, be false or misleading with respect to
any material fact or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any Republic Company or any Affiliate thereof for inclusion in the
Proxy Statement/Prospectus to be mailed to BSB's stockholders in connection with
its Stockholders' Meeting, and any other documents to be filed by any Republic
Company or any Affiliate thereof with the SEC or any other Regulatory Authority
in connection with the transactions contemplated hereby will, at the respective
time such documents are filed, and with respect to the Proxy
Statement/Prospectus, when first mailed to the stockholders of BSB, be false or
misleading with respect to any material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or, in the case of the Proxy
Statement/Prospectus or any amendment thereof or supplement thereto, at the time
of the Stockholders' Meeting, be false or misleading with respect to any
material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Stockholders' Meeting. All documents that any Republic Company or
any Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
5.14 TAX AND REGULATORY MATTERS. Except as specifically contemplated by
this Agreement, no Republic Company or any Affiliate thereof has taken or agreed
to take any action or has any Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the transactions contemplated hereby,
including the Merger, from qualifying for treatment as a reorganization within
the meaning of Section 368(a) of the Internal
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Revenue Code; or (ii) materially impede or delay receipt of any Consents of
Regulatory Authorities referred to in Section 9.1(b) of this Agreement or result
in the imposition of a condition or restriction of the type referred to in the
last sentence of such Section.
ARTICLE 6
CONDUCT OF BUSINESS PENDING CONSUMMATION
6.1 AFFIRMATIVE COVENANTS OF BSB. Unless the prior written consent of
Republic shall have been obtained and, except as otherwise expressly
contemplated herein, BSB shall and shall cause each of its Subsidiaries to (i )
operate its business only in the usual, regular and ordinary course; (ii)
preserve intact its business organization and Assets and maintain its rights and
franchises; (iii) use its reasonable efforts to maintain its current employee
relationships; and (iv) take no action which would (a) adversely affect the
ability of any party to obtain any Consents required for the transactions
contemplated hereby without imposition of a condition or restriction of the type
referred to in the last sentence of Section 8.1(b) of this Agreement; or (b)
adversely affect the ability of any party to perform its covenants and agreement
xxxxxx this Agreement.
6.2 NEGATIVE COVENANTS OF BSB. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, and except
as expressly permitted by this Agreement, BSB covenants and agrees that it will
not do or agree or commit to do, or permit any of its Subsidiaries to do or
agree or commit to do, any of the following without the prior written consent of
an authorized officer of Republic:
(a) except as required by applicable Law, amend the Charter, Articles
of Incorporation, Bylaws or other governing instruments of any BSB Company;
or
(b) incur any additional debt obligation or other obligation for
borrowed money (other than indebtedness of an BSB Company to another BSB
Company) in excess of an aggregate of $50,000 (for the BSB Companies on a
consolidated basis) except in the ordinary course of the business
consistent with past practices (which shall include, for BSB, creation of
deposit liabilities, purchases of federal funds, advances from the Federal
Reserve Bank of Atlanta or FHLB, and entry into repurchase agreements fully
secured by U.S. government or agency securities), or impose or suffer the
imposition on any Asset of any BSB Company of any Lien or permit any such
Lien to exist (other than in connection with deposits, repurchase
agreements, bankers acceptances, "treasury tax and loan" accounts
established in the ordinary course of business, the satisfaction of legal
requirements in the exercise of trust powers, and Liens in effect as of the
date hereof that are disclosed in the BSB Disclosure Memorandum); or
(c) repurchase, redeem or otherwise acquire or exchange (other than
exchanges in the ordinary course under employee benefit plans), directly or
indirectly, any shares, or any securities convertible into any shares, of
the capital stock of any BSB Company, or declare or pay any dividend or
make any other distribution in respect of BSB's capital stock.
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(d) except for this Agreement and except with respect to options
outstanding on the date hereof, issue, sell, pledge, encumber, authorize
the issuance of, enter into any Contract to issue, sell, pledge, encumber
or authorize the issuance of, or otherwise permit to become outstanding,
any additional shares of BSB Common Stock or any other capital stock of any
BSB Company, or any stock appreciation rights, or any option, warrant,
conversion or other right to acquire any such stock or any security
convertible into any such stock; or
(e) adjust, split, combine or reclassify any capital stock of any BSB
Company or issue or authorize the issuance of any other securities in
respect of or in substitution for shares of BSB Common Stock, or sell,
lease, mortgage or otherwise dispose of or otherwise encumber (x) any
shares of capital stock of any BSB Subsidiary (unless any such shares of
stock are sold or otherwise transferred to another BSB Company) or (y) any
Asset other than in the ordinary course of business for reasonable and
adequate consideration; or
(f) except for purchases of U.S. Treasury securities, or U.S.
Government agency securities, Federal Home Loan Mortgage Corporation,
Xxxxxx Xxx, Xxxxxx Xxx or other investment grade securities, purchase any
securities or make any material investment, either by purchase of stock or
securities, contributions to capital, Asset transfers, or purchase of any
Assets, in any Person other than a wholly-owned BSB Subsidiary, or
otherwise acquire direct or indirect control over any Person, other than in
connection with ( i) foreclosures in the ordinary course of business; (ii)
acquisitions of control by a depository institution Subsidiary in its
fiduciary capacity; or (iii) the creation of new wholly-owned Subsidiaries
organized to conduct or continue activities otherwise permitted by this
Agreement; or
(g) grant any increase in compensation or benefits to the employees or
officers of any BSB Company, except in accordance with past practice
disclosed in Section 6.2(g) of the BSB Disclosure Memorandum or as required
by Law; pay any severance or termination pay or any bonus other than
pursuant to written policies or written Contracts in effect on the date of
this Agreement; except as authorized by Section 7.13 of this Agreement,
enter into or amend any severance agreements with officers of any BSB
Company; grant any material increase in fees or other increases in
compensation or other benefits to directors of any BSB Company except in
accordance with past practice disclosed in Section 6.2(g) of the BSB
Disclosure Memorandum; or voluntarily accelerate the vesting of any stock
options or other stock-based compensation or employee benefits; or
(h) except as authorized by Section 7.13 of this Agreement, enter into
or amend any employment Contract between any BSB Company and any Person
(unless such amendment is required by Law) that the BSB Company does not
have the unconditional right to terminate without Liability (other than
Liability for services already rendered), at any time on or after the
Effective Time; or
( i) adopt any new employee pension benefit plan as such term is
defined in Section 3.2 of ERISA or make any Material change in or to any
other employee benefit plans of any BSB Company other than any such change
that it required by Law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax qualified status of any such plan; or
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(j) make any significant change in any Tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to
conform to changes in Tax Laws or regulatory accounting requirements or
GAAP; or
(k) commence any Litigation other than in accordance with past
practice or settle any Litigation involving any Liability of any BSB
Company for material money damages or restrictions upon the operations of
any BSB Company; or
(l) except in the ordinary course of business, modify, amend or
terminate any material Contract or waive, release, compromise or assign any
material Contract or waive, release, compromise or assign any material
rights or claims.
6.3 COVENANTS OF REPUBLIC. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, Republic
covenants and agrees that it shall ( i) continue to conduct its business and the
business of its Subsidiaries in a manner designed, in its reasonable judgment,
to enhance the long-term value of the Republic Common Stock and the business
prospects of the Republic Companies; and (ii) take no action which would (a)
materially adversely affect the ability of any party to obtain any Consents
required for the transactions contemplated hereby without imposition of a
condition or restriction of the type referred to in the last sentence of Section
8.1(b) of this Agreement; or (b) materially adversely affect the ability of any
party to perform its covenants and agreements under this Agreement; provided,
that the foregoing shall not prevent any Republic Company from discontinuing or
disposing of any of its Assets or business if such action is, in the judgment of
Republic, desirable in the conduct of the business of Republic and its
Subsidiaries.
6.4 ADVERSE CHANGES IN CONDITION. Each party agrees to give written notice
promptly to the other party upon becoming aware of the occurrence or impending
occurrence of any event or circumstance relating to it or any of its
Subsidiaries which ( i) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it; or (ii) would cause or constitute a
material breach of any of its representations, warranties or covenants contained
herein, and to use its reasonable effects to prevent or promptly to remedy the
same.
6.5 REPORTS. Each party and its Subsidiaries shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other party copies of
all such reports promptly after the same are filed. If financial statements are
contained in any such reports filed with the SEC or the OTS, such financial
statements will fairly present the consolidated financial position of the entity
filing such statements as of the dates indicated and the consolidated results of
operations, changes in stockholders' equity and cash flows for the periods then
ended in accordance with GAAP (subject in the case of interim financial
statements to normal recurring year-end adjustments that are not material). As
of their respective dates, such reports filed with the SEC or the OTS will
comply in all material respects with the Securities Laws and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any financial statements contained in any other reports to another
Regulatory Authority shall be prepared in accordance with Laws applicable to
such reports.
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ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 REGISTRATION STATEMENT; PROXY STATEMENT; STOCKHOLDER APPROVAL. As soon
as reasonably practicable after execution of this Agreement, Republic (i) as
sole stockholder of the Bank, shall approve this Agreement and (ii) shall file
the Registration Statement with the SEC and shall use its reasonable efforts to
cause the Registration Statement to become effective under the 1933 Act and take
any action required to be taken under the applicable state Blue Sky or
Securities Laws in connection with the issuance of the shares of Republic Common
Stock upon consummation of the Merger. BSB shall furnish all information
concerning it and the holders of the BSB Common Stock as Republic may reasonably
request in connection with such action. BSB shall call a Stockholders' Meeting,
to be held as soon as reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of voting upon approval of this
Agreement and such other related matters as they deems appropriate. In
connection with the Stockholders' Meetings, (i) BSB shall mail a Proxy
Statement/Prospectus to its stockholders; (ii) the parties shall furnish to each
other all information concerning them that they may reasonably request in
connection with such Proxy Statement/Prospectus; (iii) the Board of Directors of
BSB shall recommend (subject to compliance with their fiduciary duties as
advised by counsel) to their stockholders the approval of the matters submitted
for approval; and (iv) the Board of Directors and officers of BSB shall (subject
to compliance with their fiduciary duties as advised by counsel) use their
reasonable efforts to obtain such stockholders' approval.
7.2 EXCHANGE LISTING. Republic shall use its reasonable efforts to list,
prior to the Effective Time, on the National Market, subject to official notice
of issuance, the shares of Republic Common Stock to be issued to the holders of
BSB Common Stock pursuant to the Merger.
7.3 APPLICATIONS. Republic shall promptly prepare and file, and BSB shall
cooperate in the preparation and, where appropriate, filing of, applications
and/or notices with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement.
7.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, Republic Bank and BSB shall execute and file a
Certificate of Merger with the Department.
7.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each party agrees to use, and to cause its
Subsidiaries to use, its reasonable best efforts to take, or cause to be taken,
all actions and to do or cause to be done all things necessary, proper or
advisable under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable best efforts to
lift or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 8 of this Agreement; provided that nothing herein shall
preclude either party from exercising its rights under this Agreement. Each
party shall use, and shall cause each of its Subsidiaries to use, its reasonable
best efforts to obtain all Consents necessary or desirable for the consummation
of the transactions contemplated by this Agreement.
7.6 INVESTIGATION AND CONFIDENTIALITY.
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(a) Prior to the Effective Time, each party shall keep the other party
advised of all material developments relevant to its business and to
consummation of the Merger and shall permit the other party to make or cause to
be made such investigation of the business and properties of its and its
Subsidiaries and of their respective financial and legal conditions as the other
party reasonably requests, provided that such investigation shall be reasonably
related to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operation. No investigation by a party shall affect
the representations and warranties of the other party.
(b) Each party shall, and shall cause its advisers and agents to,
maintain the confidentiality of all confidential information furnished to it by
the other party concerning its and its Subsidiaries' businesses, operations and
financial positions ("Confidential Information") and shall not use such
information for any purpose except in furtherance of the transactions
contemplated by this Agreement. Each party shall maintain the confidentiality of
all Confidential Information obtained in connection with this Agreement or the
transactions contemplated hereby unless ( i) such information becomes publicly
available through no fault of such party, or was, is or becomes available to
that party from a source other than the other party or its Representatives,
which source was itself not bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality with respect to
that information; or (ii) the furnishing or use of such information is required
by proper judicial, administrative or other legal proceeding, provided that the
other party is promptly notified in writing of such request, unless such
notification is not, in the opinion of counsel, permitted by Law. Each party and
its Representatives will hold and maintain all Confidential Information in
confidence and will not disclose to any third party or permit any third party
access to any Confidential Information or the substance thereof; provided that a
party may disclose Confidential Information to such of its Representatives who
need to know such information in connection with the transactions contemplated
hereby. If this Agreement is terminated prior to the Effective Time, each party
shall promptly return or certify the destruction of all documents and copies
thereof, and all work papers containing confidential information received from
the other party.
(c) Each party agrees to give the other party notice as soon as
practicable after any determination by it of any fact or occurrence relating to
the other party which it has discovered through the course of its investigation
and which represents, or is reasonably likely to represent, either a material
breach of any representation, warranty, covenant or agreement of the other party
or which has had or is reasonably likely to have a Material Adverse Effect on
the other party.
7.7 PRESS RELEASES. Prior to the Effective Time, Republic and BSB shall
mutually agree upon and jointly issue any press release or other public
disclosure materially related to this Agreement or any other transaction
contemplated hereby; provided that nothing in this Section 7.7 shall be deemed
to prohibit any party from making any disclosure which its counsel deems
necessary or advisable in order to satisfy such party's disclosure obligations
imposed by Law.
7.8 CERTAIN ACTIONS. Except with respect to this Agreement and the
transactions contemplated hereby, no BSB Company nor any Affiliate thereof nor
any Representatives thereof retained by any BSB Company shall directly or
indirectly solicit any Acquisition Proposal by any Person. Except to the extent
necessary to comply with the fiduciary duties of BSB's Board of Directors as
advised by counsel, no BSB Company or any Affiliate or Representative thereof
shall furnish any non-public information that it is not legally obligated to
furnish, negotiate with respect to, or enter into any Contract with respect to,
any Acquisition Proposal, but BSB may
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communicate information about such an Acquisition Proposal to its stockholders
if and to the extent that it is required to do so in order to comply with its
legal obligations as advised by counsel. BSB shall promptly notify Republic
orally and in writing in the event that it receives any inquiry or proposal
relating to any such transaction. BSB shall ( I) immediately cease and cause to
be terminated any existing activities, discussions or negotiations with any
Persons conducted heretofore with respect to any of the foregoing; and (ii)
direct and use its reasonable efforts to cause all of its Representatives not to
engage in any of the foregoing.
7.9 TAX TREATMENT. Each of the parties undertakes and agrees to use its
reasonable efforts to cause the Merger and to take no action which would cause
the Merger not to qualify for treatment as a "reorganization" to be within the
meaning of Section 368(a) of the Internal Revenue Code for federal income tax
purposes.
7.10 STATE TAKEOVER LAWS. Each BSB Company shall take all necessary steps
to exempt the transactions contemplated by this Agreement from, or if necessary
challenge the validity or applicability of, any applicable state or federal
"moratorium", "control share", "fair price", "business combination" or other
anti-takeover statute or regulation ("Takeover Laws").
7.11 CHARTER PROVISIONS. Each BSB Company shall take all necessary action
to ensure that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated hereby do not and will not result
in the grant of any rights to any Person under the Charter, Articles of
Incorporation, Bylaws, or other governing instruments of any BSB Company or
restrict or impair the ability of Republic or any of its Subsidiaries to vote,
or otherwise to exercise the rights of a stockholder with respect to, shares of
any BSB Company that may be directly or indirectly acquired or controlled by it.
7.12 AGREEMENT OF AFFILIATES. BSB has disclosed in Section 7.12 of the BSB
Disclosure Memorandum each Person whom it reasonably believes is an "affiliate"
of BSB for purposes of Rule 145 under the 1933 Act. BSB shall use its reasonable
efforts to cause each such Person to deliver to Republic not later than 30 days
prior to the Effective Time, a written agreement, in substantially the form of
Exhibit 1, providing that such Person will not sell, pledge, transfer, or
otherwise dispose of the shares of BSB Common Stock held by such Person except
as contemplated by such agreement or by this Agreement and will not sell,
pledge, transfer, or otherwise dispose of the shares of Republic Common Stock to
be received by such Person upon consummation of the Share Exchange except in
compliance with applicable provisions of the 1933 Act and the rules and
regulations thereunder and Republic shall be entitled to place restrictive
legends upon certificates for shares of Republic Common Stock issued to
affiliates of BSB pursuant to this Agreement to enforce the provisions of this
Section 7.12. Republic shall not be required to maintain the effectiveness of
the Registration Statement under the 1933 Act for the purposes of resale of
Republic Common Stock by such affiliates.
7.13 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, Republic shall provide generally to
officers and employees of the BSB Companies, who at or after the Effective Time
become employees of a Republic Company, employee benefits under employee benefit
plans, on terms and conditions which when taken as a whole are substantially
similar to those currently provided by the Republic Companies to their similarly
situated officers and employees. For purposes of participation and vesting (but
not accrual of benefits) under such employee benefit plan,
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(i) service as an employee of BSB shall be treated as service under Republic's
qualified defined benefit plans, (ii) service as an employee of BSB shall be
treated as service under Republic's qualified defined contribution plans, and
(iii) service as an employee of BSB shall be treated as service under Republic's
various benefit plans offered to its employees.
(b) Republic shall honor on terms reasonably agreed upon by the
parties thereto all employment, severance, consulting, and other compensation
Contracts either authorized by Section 7.13(b) of this Agreement or disclosed in
Section 7.13 of the BSB Disclosure Memorandum to Republic between any BSB
Company and any current or former director, officer, or employee thereof, and
all provisions for vested benefits or other vested amounts earned or accrued
through the Effective Time under the BSB Benefit Plans.
7.14 INDEMNIFICATION.
(a) Until such times as the applicable statute of limitations shall
have expired with respect to any such Liabilities, Republic shall indemnify,
defend, and hold harmless the present and former directors, officers, employees,
and agents of the BSB Companies (each, an "Indemnified Party") against all
Liabilities arising out of actions or omissions occurring at or prior to the
Effective Time (including the transactions contemplated by this Agreement) to
the full extent permitted under Florida Law and the OTS Regulations and by BSB's
Charter and Bylaws as in effect on the date hereof, including provisions
relating to advances of expenses incurred in the defense of any Litigation.
Without limiting the foregoing, in any case in which approval by Republic is
required to effectuate any indemnification, Republic shall direct, at the
election of the Indemnified Party, that the determination of any such approval
shall be made by independent counsel mutually agreed upon between Republic and
the Indemnified Party.
(b) If Republic or any of its successors or assigns shall consolidate
with or merge into any other Person and shall not be the continuing or surviving
Person of such consolidation or merger or shall transfer all or substantially
all of its assets to any Person, then and in each case, proper provision shall
be made so that the successors and assigns of Republic shall assume the
obligations set forth in this Section 7.14.
(c) The provisions of this Section 7.14 are intended to be for the
benefit of and shall be enforceable by, each Indemnified Party, his or her heirs
and representatives.
7.15 CERTAIN MODIFICATIONS. Republic and BSB shall consult with respect to
their loan, litigation, and real estate valuation policies and practices
(including loan classifications and levels of reserves) and BSB shall make such
modifications or changes to its policies and practices, if any, prior to the
Effective Time, as may be mutually agreed upon. Republic and BSB also shall
consult with respect to the character, amount, and timing of restructuring and
Merger-related expense charges to be taken by each of the parties in connection
with the transactions contemplated by this Agreement and shall take such charges
in accordance with GAAP, prior to the Effective Time, as may be mutually agreed
upon by the parties. Neither parties' representations, warranties, and covenants
contained in this Agreement shall be deemed to be inaccurate or breached in any
respect as a consequence of any modifications or charges undertaken solely on
account of this Section 7.15.
7.16 BANK MERGER AGREEMENT. Within 5 days of the date of this Agreement,
the Bank, with the approval of Republic as sole shareholder of the Bank, shall
enter into a merger agreement with BSB whereby BSB shall merge with and into the
Bank, with the Bank as the surviving entity. The Bank shall prepare and
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file, and BSB shall cooperate in the preparation and filing of, applications
and/or notices with all Regulatory Authorities having jurisdiction over the
transaction contemplated herein seeking the requisite Consents required to
consummate the transactions contemplated herein.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
8.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations of
each party to perform this Agreement and to consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by both parties pursuant to Section 10.6 of
this Agreement:
(a) STOCKHOLDER APPROVAL. The stockholders of BSB, and Republic, as
sole stockholder of the Bank, shall have approved this Agreement, and the
consummation of the transactions contemplated hereby, including the Merger, as
and to the extent required by Law, by the provisions of any governing
instruments, or by the rules of the NASD.
(b) REGULATORY APPROVALS. All Consents of, filings and registration
with, and notifications to, all Regulatory Authorities required for consummation
of the Merger shall have been obtained or made and shall be in full force and
effect and all waiting periods required by Law shall have expired. No Consent
obtained from any Regulatory Authority which is necessary to consummate the
transactions contemplated hereby shall be conditioned or restricted in a manner
(including requirements relating to the raising of additional capital or the
disposition of Assets) which in the reasonable judgment of the Board of
Directors of Republic or BSB would so materially adversely impact the economic
or business benefits of the transactions contemplated by this Agreement that,
had such condition or requirement been known, Republic or BSB would not, in its
reasonable judgment, have entered into this Agreement.
(c) CONSENTS AND APPROVALS. Each party shall have obtained any and all
Consents required for consummation of the Merger (other than those referred to
in Section 8.1(b) of this Agreement) or for the preventing of any Default under
any Contract or Permit of such party which, if not obtained or made, is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on such party. No Consent so obtained which is necessary to consummate
the transactions contemplated hereby shall be conditioned or restricted in a
manner which in the reasonable judgment of the Board of Directors of Republic or
BSB would so materially adversely impact the economic or business benefits of
the transactions contemplated by this Agreement so as to render inadvisable the
consummation of the Merger.
(d) LEGAL PROCEEDINGS. No court or governmental or Regulatory
Authority of competent jurisdiction shall have enacted, issued, promulgated,
enforced, or entered any Law or Order (whether temporary, preliminary or
permanent) or taken any other action which prohibits, restricts, or makes
illegal consummation of the transactions contemplated by this Agreement.
(e) REGISTRATION STATEMENT. The Registration Statement shall have
become effective under the 1933 Act, no stop orders suspending the effectiveness
of the Registration Statement shall have been issued,
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no action, suit, proceeding, or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and all
necessary approvals under state securities Laws or the 1933 Act relating to the
issuance or trading of the shares of Republic Common Stock issuable pursuant to
the Merger shall have been received.
(f) TAX MATTERS. Each party shall have received a written opinion or
opinions from Holland & Knight LLP in a form reasonably satisfactory to such
parties (the "Tax Opinion"), to the effect that (i) the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
and (ii) the exchange in the Merger of BSB Common Stock for Republic Common
Stock will not give rise to gain or loss to the stockholders of BSB with respect
to such exchange (except to the extent of any cash received). In rendering such
Tax Opinion, such counsel shall be entitled to rely upon representations of
officers of BSB and Republic reasonably satisfactory in form and substance to
such counsel.
8.2 CONDITIONS TO OBLIGATIONS OF REPUBLIC. The obligations of Republic to
perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Republic pursuant to Section 10.6(a) of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of BSB set forth in this Agreement shall be true and correct as of
the date of this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are confined
to a specified date shall speak only as of such date). The representations and
warranties of BSB set forth in Section 4.3 of this Agreement shall be true and
correct (except for inaccuracies which are de minimis in amount). The
representations and warranties of BSB set forth in Sections 4.18, 4.19, and 4.20
of this Agreement shall be true and correct in all material respects. There
shall not exist in this Agreement (including the representations and warranties
set forth in Sections 4.3, 4.18, 4.19, and 4.20) any inaccuracies such that the
aggregate effect of such inaccuracies has, or is reasonably likely to have, a
Material Adverse Effect on BSB; provided that, for purposes of this sentence
only, those representations and warranties which are qualified by reference to
"material" or "Material Adverse Effect" or to the "Knowledge" of BSB or to a
matter being "known" by BSB shall be deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of BSB to be performed and complied with pursuant to
this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all material
respects.
(c) CERTIFICATES. BSB shall have delivered to Republic (i) a
certificate, dated as of the Closing Date and signed on its behalf by its duly
authorized officers, to the effect that the conditions of its obligations set
forth in Sections 8.2(a) and 8.2(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by BSB's Board of Directors
and stockholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such reasonable
detail as Republic and its counsel shall request.
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(d) LEGAL OPINION. Republic shall have received the opinions of Xxxxxx
& Bird LLP, counsel to BSB, or other counsel reasonably acceptable to Republic,
dated as of the Closing Date or such earlier date as may be agreed to by the
parties, with respect to such matters related to BSB and the Merger as Republic
may reasonably request. As to certain matters of fact, such counsel may rely on
certificates of public officials and senior officers of BSB knowledgeable and
having responsibility with respect to the matters covered by such certificate.
8.3 CONDITIONS TO OBLIGATIONS OF BSB. The obligations of BSB to perform
this Agreement and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following conditions, unless
waived by BSB pursuant to Section 10.6(b) of this Agreement.
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this Section
8.3(a), the accuracy of the representations and warranties of Republic set forth
in this Agreement shall be assessed as of the date of this Agreement and as of
the Effective Time with the same effect as though all such representations and
warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of Republic set
forth in Section 5.3 of this Agreement shall be true and correct (except for
inaccuracies in the Agreement such that the aggregate effect of such
inaccuracies which are de minimus in amount). The representations and warranties
of Republic set forth in Section 5.14 of this Agreement shall be true and
correct in all material respects. There shall not exist inaccuracies has, or is
reasonably likely to have, a Material Adverse Effect on Republic; provided that,
for purposes of this sentence only, those representations and warranties which
are qualified by references to "material" to "Material Adverse Effect" or to the
"Knowledge" of Republic or to a matter being "known" by Republic shall be deemed
not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of Republic to be performed and complied with pursuant
to this Agreement and the other agreements contemplated hereby prior to the
Effective Time, shall have been duly performed and complied with in all material
respects.
(c) CERTIFICATES. Republic shall have delivered to BSB ( i) a
certificate, dated as of the Effective Time and signed on its behalf by its duly
authorized officers, to the effect that the conditions of its obligations set
forth in Sections 8.3(a) and 8.3(b) of this Agreement have been satisfied, and
(ii) certified copies of resolutions duly adopted by Republic's Board of
Directors and Republic's approval, as sole stockholder of the Bank, evidencing
the taking of all corporate and stockholder action necessary to authorize the
execution, delivery, and performance of this Agreement, and the consummation of
the transactions contemplated hereby, all in such reasonable detail as BSB and
its counsel shall request.
(d) LEGAL OPINION. BSB shall have received the opinions of Holland &
Knight LLP, special counsel to Republic, dated as of the Closing Date or such
earlier date as may be agreed to by the parties, with respect to such matters
related to Republic and the Merger as BSB may reasonably request. As to certain
matters of fact, such counsel may rely on certificates of public officials and
senior officers of BSB knowledgeable and having responsibility with respect to
the matters covered by such certificate.
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MERGER ARTICLE 9
TERMINATION
9.1 TERMINATION. Notwithstanding any other provision of this Agreement,
and notwithstanding the approval of this Agreement by the stockholders of BSB,
this Agreement may be terminated and the Share Exchange abandoned at any time
prior to the Effective Time:
(a) By mutual consent of the Board of Directors of Republic and the
Board of Directors of BSB; or
(b) By the Board of Directors of either party (provided that the
terminating party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
8.2(a) of this Agreement in the case of BSB and Section 8.3(a) of this Agreement
in the case of Republic or in material breach of any covenant or other agreement
contained in this Agreement) in the event of an inaccuracy of any representation
or warranty of the other party contained in this Agreement which cannot be or
has not been cured within 30 days after the giving or written notice to the
breaching party of such inaccuracy and which inaccuracy would provide the
terminating party the ability to refuse to consummate the Merger under the
applicable standard set forth in Section 8.2(a) of this Agreement in the case of
Republic and Section 8.3(a) of this Agreement in the case of BSB; or
(c) By the Board of Directors of either party in the event of a
material breach by the other party of any covenant or agreement contained in
this Agreement which cannot be or has not been cured within 30 days after the
giving of written notice to the breaching party of such breach; or
(d) By the Board of Directors of either party in the event (I ) any
Consent of any Regulatory Authority required for consummation of the Merger and
the other transactions contemplated hereby shall have been denied by final
nonappealable action of such authority or if any action taken by such authority
is not appealed within the time limit for appeal, or (ii) the stockholders of
BSB fail to vote their approval of the matters submitted for the approval by
such stockholders at the Stockholders' Meeting where the transactions were
presented to such stockholders for approval and voted upon; or
(e) By the Board of Directors of either party in the event that the
Merger shall not have been consummated by December 1, 1998, if the failure to
consummate the transactions contemplated hereby on or before such date is not
caused by any breach of this Agreement by the party electing to terminate
pursuant to this Section 9.1(e); or
(f) By the Board of Directors of either party (provided that the
terminating party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
8.2(a) of this Agreement in the case of BSB and Section 8.3(a) of this Agreement
in the case of Republic or in material breach of any covenant or other agreement
contained in this Agreement) in the event that any of the conditions precedent
to the obligations of such party to consummate the Merger cannot be satisfied or
fulfilled by the date specified in Section 9.1(e) of this Agreement.
9.2 EFFECT OF TERMINATION. In the event of the termination and abandonment
of this Agreement pursuant to Section 9.1 of this Agreement, this Agreement
shall become void and have no effect, except that (i) the provisions of this
Section 9.2 and Article 10 and Section 7.6(b) of this Agreement shall survive
any such
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termination and abandonment, and (ii) a termination pursuant to Section 9.1(b),
9.1(c), or 9.1(f) of this Agreement shall not relieve the breaching party from
Liability for an uncured willful breach of a representation, warranty, covenant,
or agreement giving rise to such termination.
9.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
parties shall not survive the Effective Time except this Section 9.3 and
Articles 1,2, 3, and 10 and Sections 7.12, 7.13 and 7.14 of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
"Acquisition Proposal" with respect to a party shall mean any
tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or Assets of, or other business
combination involving such party or any of its Subsidiaries or the
acquisition of a substantial equity interest in, or a substantial
portion of the Assets of, such party or any of its Subsidiaries.
"Affiliate" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such
Person; (ii) any officer, director, partner, employer, or direct
or indirect beneficial owner of any 10% or greater equity or
voting interest of such Person; or (iii) any other Person for
which a Person described in clause (ii) acts in any such a
capacity.
"Agreement" shall mean this Agreement and Plan of Share
Exchange, including the Exhibits delivered pursuant hereto and
incorporated herein by reference.
"Assets" of a Person shall mean all of the assets,
properties, businesses, and rights of such Person of every kind,
nature, character, and description, whether real, personal, or
mixed, tangible or intangible, accrued or contingent, or otherwise
relating to or utilized in such Person's business, directly or
indirectly, in whole or in part, whether or not carried on the
books and records of such Person, and whether or not owned in the
name of such Person or any Affiliate of such Person and wherever
located.
"BHC Act" shall mean the Bank Holding Company Act of 1956, as
amended.
"BSB Common Stock" shall mean the common stock of BSB.
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"BSB Companies" shall mean , collectively, BSB and all BSB
Subsidiaries.
"BSB Disclosure Memorandum" shall mean the written
information entitled "Bankers Savings Bank, F.S.B. Disclosure
Memorandum" delivered prior to 5:00 p.m., Eastern time, on the
seventh day after the date of this Agreement, to Republic
describing in reasonable detail the matters contained therein and,
with respect to each disclosure made therein , specifically
referencing each Section or subsection of this Agreement under
which such disclosure is being made. Information disclosed with
respect to one Section or subsection shall not be deemed to be
disclosed for purposes of any other Section or subsection not
specifically referenced with respect thereto.
"BSB Financial Statements" shall mean (i) statements of
income, changes in stockholders' equity, and cash flows (including
related notes and schedules, if any for each of the three years
ended December 31, 1997, 1996 and 1995, as filed by BSB or the
Bank in OTS Documents and (ii) the consolidated statements of
condition of BSB including related notes and schedules, if any)
and related statements of income, changes in stockholders' equity
and cash flows (including related notes and schedules, if any)
included in OTS Documents filed with respect to periods ended
subsequent to December 31, 1997.
"BSB Subsidiaries" shall mean the Subsidiaries of BSB, which
shall include any corporation, bank, savings association, or other
organization acquired as a Subsidiary of BSB in the future and
owned by BSB and the Effective Time.
"Closing Date" shall mean the date on which the Closing
occurs.
"Consent" shall mean any consent, approval, authorization,
clearance, exemption, or waiver, similar affirmation by any Person
pursuant to any Contract, Law, Order or Permit.
"Contract shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture,
instrument, lease, obligation, plan, practice, restriction,
understanding or undertaking of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock, assets or business.
"Default" shall mean (i) any breach or violation of or
default under any Contract, Order or Permit, (ii) any occurrence
of any event that with the passage of time or the giving of notice
or both would constitute a breach or violation of or default under
any Contract, Order or Permit, or (iii) any occurrence of any
event that with or without the passage of time or the giving of
notice would give rise to a right to terminate or revoke, change
the current terms of, or renegotiate, or to accelerate, increase,
or
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impose any Liability under, any Contract, Order or Permit, where,
in any such event, such Default is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on a
party.
"Environmental Laws" shall mean all Laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, ground water, land surface,
or subsurface strata) and which are administered, interpreted, or
enforced by the United States Environmental Protection Agency and
state and local agencies with jurisdiction over, and including
common law in respect of, pollution or protection of the
environment, including the Comprehensive Environmental Response
Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq.
U.S.C. 6901 et seq. ("RCRA"), and other Laws relating to
emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security
Act or 1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Exhibits", inclusive, shall mean the Exhibits so marked,
copies of which are attached to this Agreement. Such Exhibits are
hereby incorporated by reference herein and made a part hereof,
and may be referred to in this Agreement and any other related
instrument or document without being attached hereto.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"Hazardous Material" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable
Environmental Laws) and (ii) any chemicals, pollutants,
contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal,
or encapsulation pursuant to the requirements of governmental
authorities and any polychlorinated biphenyls).
"HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended.
"Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"Knowledge" as used with respect to a Person (including
references to such Person being aware of a particular matter)
shall mean the personal knowledge of the
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chairman, president, chief financial officer, chief accounting
officer, chief credit officer, general counsel, and any assistant
or deputy general counsel, or any senior or executive vice
president of such Person and the knowledge of any such persons
obtained or which would have been obtained from a reasonable
investigation.
"Law" shall mean any code, law, ordinance, regulation,
reporting or licensing requirement, rule, or statute applicable to
a Person or its Assets, Liabilities, or business, including those
promulgated, interpreted, or enforced by any Regulatory Authority.
"Liability" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost, or
expense (including costs of investigation, collection, and
defense), claim, deficiency, guaranty, or endorsement of or by any
Person (other than endorsements of notes, bills, checks, and
drafts presented for collection or deposit in the ordinary course
of business) of any type, whether accrued, absolute or contingent,
liquidated or unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation,
infringement, lien, mortgage, pledge, reservation, restriction,
security interest, title retention, or other security arrangement,
or any adverse right or interest, charge, or claim of any nature
whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet
due and payable, and (ii) for depository institution Subsidiaries
of a party, pledges to secure deposits, and other Liens incurred
in the ordinary course of the banking business.
"Litigation" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing,
inquiry, administrative or other proceeding, or notice (written or
oral) by any Person alleging potential Liability or requesting
information relating to or affecting a party, its business, its
Assets (including Contracts related to it), or the transactions
contemplated by this Agreement, but shall not include regular,
periodic examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"Loan Property" shall mean any property owned, leased, or
operated by the party in question or by any of its Subsidiaries or
in which such party or Subsidiary holds a security or other
interest (including an interest in fiduciary capacity), and, where
required by the context, includes the owner or operator of such
property, but only with respect to such property.
"Market Value" shall mean the per share market value of
either BSB Common Stock or Republic Common Stock, as appropriate,
at the Closing Date.
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"Material" for purposes of this Agreement shall be determined
in light of the facts and circumstances of the matter in question;
provided that any specific monetary amount stated in this
Agreement shall determine materiality in that instance.
"Material Adverse Effect" on a party shall mean an event,
change, or occurrence which, individually or together with any
other event, change, or occurrence, has a material adverse impact
on (i) the financial position, business, or results of operations
of such party and its Subsidiaries, taken as a whole, or (ii) the
ability of such party to perform its obligations under this
Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement, provided that "Material Adverse
Effect" shall not be deemed to include the impact of (a) changes
in banking and similar Laws of general applicability or
interpretations thereof by courts or governmental authorities, (b)
changes in GAAP or regulatory accounting principles generally
applicable to banks and their holding companies, ( c) actions and
omissions of a party (or any of its Subsidiaries) taken with the
prior informed consent of the other party in contemplation of the
transactions contemplated hereby, and (d) the Merger and
compliance with the provisions of this Agreement on the operating
performance of the parties.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"National Market" shall mean the Nasdaq National Market
System.
"Order" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or
award, ruling, or writ of any federal, state, local, or foreign or
other court, arbitrator, mediator, tribunal, administrative
agency, or Regulatory Authority.
"OTS" shall mean the Office of Thrift Supervision.
"Participation Facility" shall mean any facility or property
in which the party in question or any of its Subsidiaries
participates in the management and, where required by the context,
said term means the owner or operator of such facility or
property, but only with respect to such facility or property.
"Permit" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement,
filing, franchise, license, notice, permit, or right to which any
Person is a party or that is or may be binding upon or inure to
the benefit of any Person or its securities, Assets, or business.
"Person" shall mean a natural person or any legal,
commercial, or governmental entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business
association, group acting in concert, or any person acting in a
representative capacity.
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"Proxy Statement/Prospectus" shall mean the proxy statement
used by BSB to solicit the approval of their respective
stockholders of the transactions contemplated by this Agreement,
which shall include the prospectus of Republic relating to the
issuance of the Republic Common Stock to holders of BSB Common
Stock in the Share Exchange
"Registration Statement" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any
pre-effective or post-effective amendments or supplements thereto,
filed with the SEC by Republic under the 1933 Act with respect to
the shares of Republic Common Stock to be issued to the
stockholders of BSB in connection with the transactions
contemplated by this Agreement.
"Regulatory Authorities" shall mean , collectively, the
Federal Trade Commission, the United States Department of Justice,
the Board of Governors of the Federal Reserve System the FDIC, the
OTS, the Florida Department of Banking and Finance, all other
state agencies having jurisdiction over Republic and BSB and their
respective Subsidiaries, the NASD, and the SEC.
"Representative" shall mean any investment banker, financial
advisor, attorney, accountant, consultant or other representative
of a Person.
"Republic Common Stock" shall mean the $2.00 par value common
stock of Republic.
"Republic Companies" shall mean, collectively, Republic and
all Republic Subsidiaries.
"Republic Disclosure Memorandum" shall mean the written
information entitled "Republic Bancshares, Inc. Disclosure
Memorandum" delivered prior to the date of this Agreement to BSB
describing in reasonable detail the matters contained therein and,
with respect to each disclosure made therein, specifically
referencing each Section or subsection of this Agreement under
which such disclosure is being made. Information disclosed with
respect to one Section or subsection shall not be deemed to be
disclosed for purposes of any other Section or subsection not
specifically referenced with respect thereto.
"Republic Financial Statements" shall mean (i) the
consolidated statements of condition (including related notes and
schedules, if any) of Republic as of December 31, 1997, and 1996
and the consolidated statements of condition (including related
notes and schedules, if any) of the Bank as of December 31, 1995,
and the related restated statements of income, changes in
stockholders' equity, and cash flows
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(including related notes and schedules, if any) for each of the
three years ended December 31, 1997, 1996 and 1995, as filed by
Republic or the Bank in SEC Documents and (ii) the consolidated
statements of condition of Republic (including related notes and
schedules, if any) and related statements of income, changes in
stockholders' equity and cash flows (including related notes and
schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to December 31, 1997.
"Republic Preferred Stock" shall mean the $20.00 par value
noncumulative convertible perpetual preferred stock of Republic.
"Republic Subsidiaries" shall mean the Subsidiaries of
Republic and any corporation, bank, savings association or other
organization acquired as a Subsidiary of Republic in the future
and owned by Republic at the Effective Time.
"Rights" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of a Person or by
which a Person is or may be bound to issue additional shares of
its capital stock or other Rights.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules and other documents
filed or required to be filed by a party or any of its
Subsidiaries with any Regulatory Authority pursuant to the
Securities Laws.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment
Advisors Act of 1940, as amended, the Trust Indenture Act of 1939,
as amended, and the rules and regulations of any Regulatory
Authority promulgated thereunder.
"Stockholders' Meeting" shall mean the meeting of the
stockholders of BSB to be held pursuant to Section 7.1 of this
Agreement, including any adjournment or adjournments thereof.
"Subsidiaries" shall mean all those corporations, banks,
associations or other entities of which the entity in question
owns or controls 50% or more of the outstanding equity securities
either directly or through an unbroken chain of entities as to
each of which 50% or more of the outstanding equity securities is
owned
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directly or indirectly by its parent; provided, there shall not be
included any such entity acquired through foreclosure or any such
entity the equity securities of which are owned or controlled in a
fiduciary capacity.
"Tax" or "Taxes" shall mean all federal, state, local and
foreign taxes, charges, fees, levies, imposts, duties or other
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance,
stamp, occupation, windfall profits, environmental, federal
highway use, commercial rent, customs duties, capital stock,
paid-up capital, profits, withholding, Social Security, single
business and unemployment, disability, real property, personal
property, registration, ad valorem, value added, alternative or
add-on minimum, estimated or other tax or governmental fee of any
kind whatsoever, imposed or required to be withheld by the United
States or any state, local, foreign government or subdivision or
agency thereof, including any interest, penalties or additions
thereto.
"Taxable Period" shall mean any period prescribed by any
governmental authority, including the United States or any state,
local, foreign government or subdivision or agency thereof for
which a Tax Return is required to be filed or Tax is required to
be paid.
"Tax Return" shall mean any report, return, information
return or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a party or
its Subsidiaries.
(b) The terms set forth below shall have the meanings ascribed thereto
in the referenced sections:
OTS Regulations Section 2.1.1
Certificate of Merger Section 1.3
Closing Section 1.2
Effective Time Section 1.3
ERISA Affiliate Section 4.13(c)
Exchange Agent Section 3.1
Exchange Ratio Section 2.1(b)
BSB Benefit Plans Section 4.13(a)
BSB Contracts Section 4.14
BSB ERISA Plan Section 4.13(a)
FHLB Section 4.1 (b)
BSB options Section 2.1(c)
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BSB Pension Plan Section 4.13(a)
BSB Reports Section 4.5(a)
OTS Section 4.5(a)
Indemnified party Section 7.14
Share Exchange Section 1.1
Republic SEC Reports Section 5.5(a)
Takeover Laws Section .10
Tax Opinion Section .1(g)
(c) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
10.2 EXPENSES.
(a) BSB may (i) pay a fee to RP Financial, LC. (an investment banking
firm to be selected by BSB) in connection with a fairness opinion regarding the
transactions contemplated by this Agreement, and (ii) reimburse an individual in
connection with actual costs incurred in connection with engaging in certain
discussions with Republic, such reimbursement not to exceed $5,000. Except as
set forth on the preceding sentence each of the parties shall bear and pay all
direct costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including filing, registration, and
application fees, printing fees, and fees and expenses of its own financial or
other consultants, investment brokers, accountants, and counsel, except that
each of the parties shall bear and pay one-half of the printing costs incurred
in connection with the printing and filing of the Registration Statement and the
Proxy Statement/Prospectus.
(b) Nothing contained in this Section 10.2 shall constitute or shall
be deemed to constitute liquidated damages for the willful breach by a party of
the terms of this Agreement or otherwise limit the rights of the nonbreaching
party.
10.3 BROKERS AND FINDERS. Each of the parties represents and warrants that
neither it nor any of its officers, directors employees, or Affiliates has
employed any broker or finder or incurred any Liability for any financial
advisory fees, investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the transactions contemplated
hereby. In the event of a claim by any broker or finder based upon his, her or
its representing or being retained by or allegedly representing or being
retained by BSB or Republic, each of BSB and Republic, as the case may be,
agrees to indemnify and hold the other party harmless of and from any Liability
in respect of any such claim.
10.4 ENTIRE AGREEMENT. Except as otherwise expressly provided herein, this
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
parties or their respective successors, any Rights, remedies, obligations, or
Liabilities under or by reason of this Agreement, other than (i) the
stockholders of BSB, as provided in Articles 1, 2 and 3 of this Agreement, and
(ii) as provided in Sections 7.12, 7.13 and 7.14 of this Agreement.
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10.5 AMENDMENTS. To the extent permitted by Law, this Agreement may be
amended by a subsequent writing signed by each of the parties upon the approval
of the Boards of Directors of each of the parties, whether before or after
stockholder approval of this Agreement has been obtained; provided, that the
provisions of this Agreement relating to the manner or basis in which shares of
BSB Common Stock will be exchanged for Republic Common Stock shall not be
amended after the Stockholder's Meeting without the requisite approval of the
holders of the issued and outstanding shares of BSB Common Stock entitled to
vote thereon.
10.6 WAIVERS.
(a) Prior to or at the Effective Time, Republic, acting through its
Board of Directors, chief executive officer, chief financial officer, or other
authorized officer, shall have the right to waive any Default in the performance
of any term of this Agreement by BSB, to waive or extend the time for the
compliance or fulfillment by BSB of any and all of its obligations under this
Agreement, and to waive any or all of the conditions precedent to the
obligations of Republic under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of Republic.
(b) Prior to or at the Effective Time, BSB, acting through its Board
of Directors, chief executive officer, chief financial officer, or other
authorized officer, shall have the right to waive any Default in the performance
of any term of this Agreement by Republic, to waive or extend the tine for the
compliance or fulfillment by Republic of any and all of its obligations under
this Agreement, and to waive any or all of the conditions precedent to the
obligations of BSB under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such waiver shall be
effective unless in writing signed by a duly authorized officer of BSB.
(c) The failure of any party at any time to require performance of any
provision hereof shall in no manner affect the right of such party at a later
time to enforce the same or any other provision of this Agreement. No waiver of
any condition or of the breach of any term contained in this Agreement in one or
more instances shall be deemed to be or construed as a further or continuing
waiver of such condition or breach or a waiver of any other condition or of the
breach of any other term of this Agreement.
10.7 ASSIGNMENT. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by the parties and their respective successors and assigns.
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10.8 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
facsimile transmission, by registered or certified mail, postage prepaid or by
courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
BSB: Bankers Savings Bank
0000 Xxxxx xx Xxxx Xxxx.
Xxxxx Xxxxxx, Xx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
President and Chief Executive Officer
Copy to Counsel: Xxxx X.Xxxxxxx, Esq.
One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Republic: Republic Bancshares, Inc.
000 Xxxxxx Xxxxxx, X.X., Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Chairman of the Board
Chief Executive Officer and
President
Copy to Counsel:
Republic Bancshares, Inc.
000 Xxxxxx Xxxxxx, X.X., Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
General Counsel
10.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Florida, without regard to any
applicable conflicts of Laws, except to the extent that the provisions of Title
12 of the United States Code and the OTS Regulations and the implementing
regulations of the FDIC govern the transactions contemplated by this Agreement.
10.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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10.11 CAPTIONS. The captions contained in this Agreement are for reference
purposes only and are part of this Agreement.
10.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any party, whether under
any rule of construction or otherwise. No party to this Agreement shall be
considered the draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated and accepted by all parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of the
parties.
10.13 ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
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10.14 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
BANKERS SAVINGS BANK, F.S.B.
By: By:
------------------------------- -------------------------------------
Corporate Secretary Xxxxxxx Xxxxxxxxx
President and Chief Executive Officer
[CORPORATE SEAL]
REPUBLIC BANCSHARES, INC.
By: By:
------------------------------- -------------------------------------
Xxxxxxxxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
Corporate Secretary Chairman of the Board,
Chief Executive Officer and
President
[CORPORATE SEAL]
42
