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EXHIBIT 10.12
AGREEMENT AND PLAN OF MERGER
AGREEMENT and PLAN OF MERGER, dated this 18th day of December, 2000
(the "PLAN"), by and among Peninsula Bancorp, Inc. ("Peninsula"), and Southern
Community Bancorp ("Southern").
RECITALS:
A. PENINSULA. Peninsula is a corporation duly organized and existing
in good standing under the laws of the State of Florida, with its principal
executive offices located in Daytona Beach, Florida. As of the date hereof,
Peninsula's authorized capital stock consisted of 10,000,000 shares of common
stock, par value $1.00 per share ("PENINSULA COMMON STOCK"), of which 994,944
shares of Peninsula Common Stock were outstanding. Peninsula Bank of Central
Florida ("PENINSULA BANK") is a commercial bank duly organized and existing in
good standing under the laws of the State of Florida, with its main office
located in Daytona Beach, Florida. As of the date hereof, Peninsula Bank's
authorized capital stock consisted of 1,000,000 shares of common stock, par
value $5.00 per share ("PENINSULA BANK COMMON STOCK") of which 735,859 shares
are outstanding, and all of which are owned by Peninsula.
B. SOUTHERN. Southern is a corporation duly organized and existing in
good standing under the laws of the State of Florida with its principal
executive offices located in Orlando, Florida. As of the date hereof,
Southern's authorized capital stock consisted of 10,000,000 shares of common
stock, par value $1.00 per share ("SOUTHERN COMMON STOCK"), of which 1,090,408
shares were outstanding. Southern Community ("SOUTHERN BANK") is a commercial
bank duly organized and existing in good standing under the laws of the State
of Florida, with its main office located in Orlando, Florida. As of the date
hereof, Southern Bank's authorized capital stock consisted of 2,000,000 shares
of common stock, par value $7.50 per share ("SOUTHERN BANK COMMON STOCK"), of
which 884,425 shares are outstanding, and all of which are owned by Southern.
C. MERGER. Pursuant to this Agreement and Plan of Merger, the parties
have agreed that Peninsula will merge with and into Southern (the "MERGER"), as
a result of which Peninsula Bank will become a direct wholly-owned subsidiary
of Southern.
D. INTENTION OF THE PARTIES. It is the intention of the parties to
this Plan that the Merger shall qualify as a reorganization under Section
368(a) of the Internal Revenue Code of 1986, as amended (the "CODE").
E. APPROVALS. The Boards of Directors of each of Southern and
Peninsula have determined that this Plan and the transactions contemplated
hereby are in their respective best interests and the best interests of their
respective stockholders, and have approved this Plan at meetings of each of
such Boards of Directors.
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NOW, THEREFORE, in consideration of their mutual promises and
obligations, the parties hereto, intending to be legally bound, adopt and make
this Plan and prescribe the terms and conditions hereof and the manner and
basis of carrying the Plan into effect, as follows:
II. THE MERGER AND BANK ACQUISITION.
2.1 THE MERGER. In the event that all of the conditions set forth in
Article VI hereof have been satisfied or waived:
(A) THE CONTINUING CORPORATION. On the Merger Effective Date,
Peninsula shall merge with and into Southern, the separate existence of
Peninsula shall cease and Southern (sometimes hereinafter referred to as the
"CONTINUING CORPORATION") shall survive. The name of the Continuing Corporation
shall be "Southern Community Bancorp."
(B) RIGHTS, ETC. Upon consummation of the Merger, the
Continuing Corporation shall thereupon and thereafter possess all of the
rights, privileges, immunities and franchises, of a public as well as of a
private nature, of Southern and Peninsula, and all property, real, personal and
mixed and all debts due on whatever account, and all other causes of action,
all and every other interest of or belonging to or due to each of the
corporations so merged shall be deemed to be vested in the Continuing
Corporation without further act or deed. The title to any real estate, or any
interest therein, vested in any of such corporations, shall not revert or be in
any way impaired by reason of the Merger, as provided by the laws of the State
of Florida.
(C) LIABILITIES. Upon consummation of the Merger, the
Continuing Corporation shall thenceforth be responsible and liable for all the
liabilities, obligations and penalties of each of the corporations so merged.
All rights of creditors and obligors and all liens on the property of each of
Southern and Peninsula shall be preserved unimpaired.
(D) ARTICLES OF INCORPORATION; BYLAWS; DIRECTORS; OFFICERS;
EXECUTIVE OFFICES.
(i) The articles of incorporation and bylaws of the Continuing
Corporation shall be those of Southern, as in effect immediately prior to the
Merger Effective Date (as hereinafter defined).
(ii) The directors of the Continuing Corporation, who shall hold
office until such time as their successors are elected and qualified, shall
include all of those persons who were directors of Southern immediately prior
to the Merger Effective Date and four persons, including Xxxxxx X. Xxxxxx, Xx.,
who were directors of Peninsula immediately prior to the Merger Effective Date.
(iii) The officers of Southern in office immediately prior to the
Merger Effective Date shall be the officers of the Continuing Corporation.
(iv) The executive offices of the Continuing Corporation shall be
those of Southern.
(v) The articles of incorporation, bylaws, directors, and officers of
Peninsula Bank immediately prior to the Merger Effective Date shall continue to
be those of Peninsula Bank thereafter
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until, in the case of the articles of incorporation and bylaws, such documents
are changed in accordance with applicable law and, in the case of directors and
officers, until their successors are elected and qualified. Peninsula Bank will
continue to maintain and operate its existing banking offices following the
Merger Effective Date as offices of Peninsula Bank.
1.2 MERGER EFFECTIVE DATE; CLOSING. The Merger shall become effective
upon the filing and acceptance of articles of merger by the Office of the
Secretary of State of Florida (the "MERGER EFFECTIVE DATE") which such articles
of merger shall be filed within ten (10) days after satisfaction of all
conditions set forth in Article VI, including, without limitation, the receipt
of the regulatory approvals referred to in Section 6.2 thereof unless otherwise
agreed to in writing by the parties hereto. All documents required by the terms
of this Plan to be delivered at or prior to consummation of the Merger shall be
exchanged by the parties at the closing of the Merger (the "CLOSING"), which
shall be held on the Merger Effective Date at the offices of Southern, 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (or at such other location as may
be mutually agreed upon) at 10:00 a.m.
III. MERGER CONSIDERATION.
3.1 MERGER CONSIDERATION. Subject to the provisions of this Plan,
automatically, as a result of the Merger, and without any action on the part of
any party or shareholder:
(A) OUTSTANDING SOUTHERN COMMON STOCK. The shares of Southern
Common Stock issued and outstanding immediately prior to the Merger shall, on
and after the Merger Effective Date, remain issued and outstanding shares of
Southern Common Stock.
(B) OUTSTANDING SOUTHERN BANK COMMON STOCK. The shares of
Southern Bank Common Stock issued and outstanding immediately prior to the
Merger shall, on and after the Merger Effective Date, remain issued and
outstanding shares of Southern Bank Common Stock.
(C) OUTSTANDING PENINSULA COMMON STOCK. Each share of
Peninsula Common Stock (excluding shares owned by Peninsula, if any) issued and
outstanding immediately prior to the Merger Effective Date shall, by virtue of
the Merger, automatically and without any action on the part of the holder
thereof, become and be converted into the right to receive 0.625 shares (the
"EXCHANGE RATIO") of Southern Common Stock. Any shares of Peninsula Common
Stock owned by Peninsula shall be canceled and retired upon the Merger
Effective Date and no consideration shall be issued in exchange therefor. In
the event that prior to the Merger Effective Date the shares of Southern Common
Stock shall be changed into a different number of shares or a different class
of shares by reason of any recapitalization or reclassification, stock
dividend, combination, stock split, or reverse stock split of the Southern
Common Stock, an appropriate and proportionate adjustment shall be made in the
number of shares of Southern Common Stock into which the Peninsula Common Stock
shall be converted; provided, however, that no such adjustment shall be made
with respect to the issuance by Southern of up to 850,000 shares of the
Southern Common Stock in connection with the public offering of such stock
described in the prospectus dated July 17, 2000, and any subsequent amendment
to such prospectus (the "Offering").
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(D) OUTSTANDING SHARES OF PENINSULA BANK. The shares of
Peninsula Bank Common Stock issued and outstanding immediately prior to the
Merger shall, on and after the Merger Effective Date, remain issued and
outstanding shares of Peninsula Bank Common Stock.
3.2 SHAREHOLDER RIGHTS; STOCK TRANSFERS. On the Merger Effective Date,
holders of Peninsula Common Stock shall cease to be, and shall have no rights
as stockholders of Peninsula, other than to receive the Merger consideration
provided under Section 2.1 above and Section 2.3 below. After the Merger
Effective Date, there shall be no transfers on the stock transfer books of
Peninsula or the Continuing Corporation of the shares of Peninsula Common Stock
which were issued and outstanding immediately prior to the Merger Effective
Date.
3.3 FRACTIONAL SHARES. Notwithstanding any other provision hereof, no
fractional shares of Southern Common Stock, and no certificates or scrip
therefor, or other evidence of ownership thereof, will be issued in the Merger.
Instead, Southern shall pay to each holder of Peninsula Common Stock who would
otherwise be entitled to a fractional share of Southern Common Stock an amount
in cash determined by multiplying such fractional share of Southern Common
Stock by $16.50.
3.4 EXCHANGE PROCEDURES. As promptly as practicable after the Merger
Effective Date, Southern shall send or cause to be sent to each former
stockholder of record of Peninsula immediately prior to the Merger Effective
Date transmittal materials for use in exchanging such stockholder's
certificates formerly representing Peninsula Common Stock ("OLD CERTIFICATES")
for the consideration set forth in Section 2.1(C) and Section 2.3 above. The
certificates representing the shares of Southern Common Stock ("NEW
CERTIFICATES") issuable in exchange for the Old Certificates, and any payment
for a fractional share of Southern Common Stock which a Peninsula stockholder
may be entitled to receive, will be delivered to such stockholder only upon
delivery of Old Certificates representing all of such shares (or, if any of the
Old Certificates are lost, stolen or destroyed, indemnity satisfactory to
Southern). No interest will be paid on any fractional share payment which the
holder of such shares may be entitled to receive. After the Merger Effective
Date, to the extent required by law, former stockholders of record of Peninsula
shall be entitled to vote at any meeting of holders of Southern Common Stock
the number of whole shares of Southern Common Stock into which their respective
shares of Peninsula Common Stock are converted, regardless of whether such
holders have exchanged their certificates representing Peninsula Common Stock
for certificates representing Southern Common Stock in accordance with the
provisions of this Plan. Notwithstanding the foregoing, Southern shall not be
liable to any former holder of Peninsula Common Stock for any amount properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
3.5 OPTIONS AND WARRANTS.
(A) (i) Any valid option or warrant to purchase shares of
Peninsula Common Stock (a "PENINSULA OPTION"), outstanding and unexercised
immediately prior to the Merger shall, by virtue of the Merger, automatically
and without any action on the part of the holder thereof, become and be
converted into an option or a warrant to purchase that number of shares of
Southern Common Stock as shall equal the Exchange Ratio multiplied by that
number of shares of Peninsula Common Stock which such option or warrant
entitled the holder thereof to purchase (rounded to the nearest whole share),
and at an exercise price equal to the exercise price per share of the Peninsula
Option divided by
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the Exchange Ratio (rounded to the nearest cent). Southern shall assume each
such Peninsula Option in accordance with the terms of the plan or agreement by
which it is evidenced, subject to the foregoing. A list of all outstanding
Peninsula Options is set forth in Schedule 2.5(A)(i) of this Plan.
(ii) In addition to the foregoing, in order to preserve to
the directors, executive officers and key employees of Peninsula Bank benefits
substantially equivalent to those provided by the Peninsula stock option plans
in existence as of the date of this Plan, at the first meeting of its
shareholders called after the Merger Effective Date, Southern will submit to
its shareholders for approval one or more stock option plans or amendments to
its existing stock option plans (the "REVISED PENINSULA PLANS") which shall:
(x) supersede and replace the existing Peninsula stock option plans as of and
after the Merger Effective Date; (y) include substantially the same provisions
as are set forth in the existing Peninsula stock option plans, as amended,
copies of which are set forth as Schedule 2.5(A)(ii) of this Plan; and (z)
authorize the grant of options to purchase an aggregate of 124,320 shares of
Southern Common Stock, inclusive of the number of shares of Southern Common
Stock issuable upon the exercise of Peninsula Options outstanding on the Merger
Effective Date pursuant to Section 2.5(A)(i) of this Plan. The Revised
Peninsula Plans shall be subject to administration by a committee of persons
who serve both as directors of Southern and of Peninsula Bank, and the grant of
options under such Revised Peninsula Plans after the Merger Effective Date
shall be determined in the discretion of such committee.
(B) Any valid option or warrant to purchase shares of
Southern Common Stock (a "SOUTHERN OPTION"), outstanding and unexercised
immediately prior to the Merger, shall remain outstanding from and after the
Merger Effective Date upon the same terms and conditions as before the Merger
Effective Date. A list of all outstanding Southern Options is set forth in
Schedule 2.5(B) to this Plan.
2.6. DISSENTERS' RIGHTS. Any shareholder of Peninsula who shall not
have voted in favor of this Plan and who has complied with the applicable
procedures set forth in the Florida Business Corporation Act, relating to
rights of dissenting shareholders, shall be entitled to receive payment for the
fair value of such holders' shares of Peninsula Common Stock. If after the
Merger Effective Date a dissenting shareholder of Peninsula fails to perfect,
or effectively withdraws or loses, such holder's right to appraisal and payment
for the shares of Peninsula Common Stock, Southern shall issue and deliver the
consideration to which such holder of shares of Peninsula Common Stock is
entitled under Sections 2.1(C) and 2.3 (without interest) upon surrender by
such holder of the certificate or certificates representing the shares of
Peninsula Common Stock held by the holder.
IV. ACTIONS PENDING MERGER.
4.1 ACTIONS PENDING MERGER. From the date hereof until the Merger
Effective Date, except as expressly contemplated by this Plan, without the
prior written consent or approval of the other, neither Peninsula (and its
subsidiary Peninsula Bank) nor Southern (and its subsidiary, Southern Bank)
will:
(A) DIVIDENDS. Declare, make or pay any dividend, or declare
or make any distribution on, any shares of its capital stock except for
dividends or distributions from Peninsula Bank to Peninsula or Southern Bank to
Southern, or directly or indirectly combine, redeem, reclassify, purchase or
otherwise acquire any shares of its capital stock.
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(B) COMPENSATION; EMPLOYMENT AGREEMENTS. Enter into or amend
any employment, severance or similar agreements or arrangements with, increase
the rate of compensation or increase any employee benefit of (except normal
individual increases in the ordinary course of business in accordance with
existing policy consistent with past practice), or pay or agree to pay any
bonus to, any of its directors, officers or employees, except in accordance
with plans or agreements existing and as in effect on the date hereof disclosed
in Schedule 3.1(B).
(C) BENEFIT PLANS. Enter into or modify (except as may be
required by applicable law) any pension, retirement, stock option, stock
purchase, savings, profit sharing, deferred compensation, consulting, bonus,
group insurance, or other employee benefit, incentive or welfare contract, plan
or arrangement, or any trust agreement related thereto, in respect of any of
its directors, officers or other employees, including without limitation taking
any action that accelerates (i) the vesting or exercise of any benefits payable
thereunder; or (ii) the right to exercise any employee stock options
outstanding thereunder, except as disclosed in Schedule 3.1(C).
(D) ACQUISITIONS AND DISPOSITIONS. Except as disclosed in
Schedule 3.1(D), dispose of or discontinue any portion of any material assets,
business or properties (except for the sale of foreclosed properties, or
properties received in lieu of foreclosure, in the ordinary course of business,
consistent with past practice), or merge, consolidate or enter into a business
combination with, or acquire all or any substantial portion of, the business or
property of any other entity (except for properties received through, or in
lieu of, foreclosure in the ordinary course of business, consistent with past
practice).
(E) AMENDMENTS. Amend its articles of incorporation or
bylaws.
(F) ACTIONS IN ORDINARY COURSE. Except as disclosed in
Schedule 3.1(F), take any other action or engage in any loan, deposit,
investment or other transaction not in the usual, regular and ordinary course
of business consistent with past practice, including, but not limited to, (i)
significantly changing asset liability sensitivity, (ii) making loans which are
not consistent with past practice or otherwise changing its credit policies or
standards, (iii) purchasing or selling securities except for purchases and
sales of investment securities in the ordinary course of business consistent
with past practice, (iv) entering into any material contract, except for this
Plan, to be performed after the date hereof, (v) incurring any indebtedness for
borrowed money, (vi) changing its capital structure, (viii) changing its
business practices and (viii) changing its accounting methods or practices.
(G) AGREEMENTS. Agree or commit to do or take any of the
foregoing actions.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Peninsula hereby represents and warrants to Southern, and Southern
hereby represents and warrants to Peninsula as follows:
(A) RECITALS. The facts set forth in the Recitals of this
Plan with respect to it or its subsidiary bank are true and correct.
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(B) CAPITAL SHARES. The outstanding shares of it and its
subsidiary bank are duly authorized, validly issued and outstanding, fully paid
and nonassessable, and subject to no preemptive rights. Except for (i) the
Peninsula Options and the Southern Options, and (ii) subscriptions to purchase
not more than 850,000 shares of the Southern Common Stock in the Offering,
there are no outstanding options, warrants, securities, subscriptions, rights
or other contractual agreements or arrangements that give any person the right
to purchase or otherwise receive or be issued any capital stock of it or its
subsidiary or any security of any kind convertible into or exercisable or
exchangeable for any shares of capital stock of it or its subsidiary or to
receive any benefits or rights similar to any rights enjoyed by or accruing to
a holder of shares of capital stock (including any rights to participate in the
equity, income or election of directors of it or its subsidiary (collectively,
"OPTIONS")).
(C) QUALIFICATION. It and its subsidiary bank are duly
qualified to do business and are in good standing in the State of Florida and
in any other states of the United States and foreign jurisdictions where their
ownership, use or leasing of property or the conduct or nature of their
business requires either of them to be so qualified, licensed or admitted and
in which the failure to be so qualified, licensed or admitted and in good
standing could reasonably be expected to have a Material Adverse Effect (as
such term is defined in Section 8.8(B)). Each of its and its subsidiary bank
has the corporate power and authority to carry on its business as it is now
being conducted and to own all its material properties and assets. Each of it
and its subsidiary bank has in effect all federal, state and local
authorizations, licenses and approvals necessary for it to own or lease its
properties and assets and to carry on its business as it is now conducted.
(D) SUBSIDIARIES. Peninsula does not have any direct or
indirect subsidiaries except for Peninsula Bank. Southern does not have any
direct or indirect subsidiaries except for Southern Bank and Southern Community
Insurance Agency, Inc. Upon completion of the Offering, however, and receipt of
required regulatory approvals, Southern intends to acquire all of the shares of
capital stock of Southern Community Bank of Southwest Florida.
(E) AUTHORITY. Subject to receipt of any necessary approval
by its stockholders and the regulatory approvals referred to in Section 6.2, it
has the corporate power and authority to execute, deliver and perform its
obligations under this Plan, this Plan has been authorized by all necessary
corporate action by it and is a valid and binding agreement of it enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
receivership, conservatorship and other laws of general applicability relating
to or affecting creditors rights and to general equity principles.
(F) NO CONFLICT. The execution, delivery and performance of
this Plan and the consummation of the transactions contemplated hereby by it
will not constitute (i) a breach or violation of, or a default under, any law,
rule or regulation (collectively "LAWS") or any judgment, decree or order
(collectively "ORDERS"), governmental permit or license (collectively
"LICENSES"), or contract, agreement, indenture or instrument (collectively
"CONTRACTS") of it or its subsidiaries or to which it or its subsidiaries or
any of their properties is subject or by which any of them are bound, which
breach, violation or default is reasonably likely to have, either by itself or
in the aggregate with one or more other events, occurrences or circumstances, a
Material Adverse Effect on it; (ii) a breach or violation of, or a default
under, its articles of incorporation, charter or bylaws (or other comparable
corporate charter documents), or those of its subsidiaries; (iii) result in or
give any person any right of termination, cancellation,
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acceleration or modification in or with respect to any Orders, Licenses or
Contracts, (iv) result in or give to any person any additional rights or
entitlement to increased, accelerated or guaranteed payments under any Orders,
Licenses or Contracts, or (v) result in the creation or imposition of any lien
or encumbrance on the assets or properties of it or its subsidiaries; and the
consummation of the transactions contemplated by this Plan will not require any
consent or approval under any Laws, Orders, Licenses or Contracts or, except as
set forth in Schedule 4.1(F), the consent or approval of any other party to any
Orders, Licenses or Contracts other than the required approvals of applicable
regulatory authorities referred to in Section 6.2.
(G) FINANCIAL STATEMENTS. Prior to the execution of this
Plan, each party has delivered to the other true and complete copies of the
following financial statements (which are attached as Schedule 4.1(G):
(i) the audited consolidated balance sheets of it
and its consolidated subsidiaries as of December 31, 1999 and 1998 (except, in
the case of Peninsula, such balance sheets may be those of Peninsula Bank), and
the related audited consolidated statements of operations, stockholders' equity
and cash flows for the fiscal year then ended (the "Audited Financial
Statements"), together with a true and correct copy of the report on such
audited information by their respective independent accountants, and all
letters from such accountants with respect to the results of such audits; and
(ii) the unaudited consolidated balance sheets of it
and its consolidated subsidiaries as of September 30, 2000 and the related
unaudited consolidated statements of operations, stockholders' equity and cash
flows for the period then ended (the "Unaudited Financial Statements") (the
Audited Financial Statements and the Unaudited Financial Statements are
sometimes hereinafter collectively referred to as the "Financial Statements").
All such Financial Statements were prepared in accordance with generally
accepted accounting principles consistently applied and fairly present its
consolidated financial condition and results of operations as of the respective
dates thereof and for the respective periods covered thereby.
(H) ABSENCE OF CHANGES. Except for the execution and delivery
of this Plan and the transactions to take place pursuant hereto on the Merger
Effective Date, since December 31, 1999 there has not been any change,
development or event which, individually or together with other such changes,
developments or events, could reasonably be expected to have a Material Adverse
Effect on its business, financial condition or results of operations. Without
limiting the foregoing, except as disclosed in Schedule 4.1(H) or in the
Unaudited Financial Statements, there has not occurred between December 31,
1999 and the date hereof:
(i) any declaration, setting aside or payment of any
dividend or other distribution in respect of its capital stock, or any direct
or indirect redemption, purchase or other acquisition by it or its banking
subsidiary of any such capital stock of or any Option with respect to it or its
banking subsidiary;
(ii) any authorization, issuance, sale or other
disposition by it or its subsidiary of any shares of capital stock of or Option
with respect to it or its subsidiaries, or any modification or
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amendment of any right of any holder of any outstanding shares of capital stock
of or Option with respect to it or its subsidiary;
(iii) (x) any increase in the salary, wages or other
compensation of any officer, employee or consultant of it or its subsidiaries
whose annual salary is, or after giving effect to such change would be,
$100,000 or more; (y) any establishment or modification of (A) targets, goals,
pools or similar provisions in respect of any fiscal year under any benefit
plan, employment contract or other employee compensation arrangement or (B)
salary ranges, increase guidelines or similar provisions in respect of any
benefit plan, employment contract or other employee compensation arrangement;
or (z) any adoption, entering into, amendment, modification or termination
(partial or complete) of any benefit plan except to the extent required by
applicable Laws and, in the event compliance with legal requirements presented
options, only to the extent the option which it or its subsidiary reasonably
believed to be the least costly was chosen;
(iv) any borrowing by it or its subsidiaries except
in the ordinary course of business;
(v) with respect to any property securing any loan
or other credit arrangement made by it or its banking subsidiary, and to the
knowledge of Southern or Peninsula, as the case may be, any physical damage,
destruction or other casualty loss (whether or not covered by insurance) in an
aggregate amount exceeding $100,000;
(vi) any material change in (w) any pricing,
investment, accounting, financial reporting, credit, allowance or tax practice
or policy of it or its subsidiaries, (x) any method of calculating any bad
debt, contingency or other reserve of it or its subsidiaries for accounting,
financial reporting or tax purposes, (y) the fiscal year of it or its
subsidiaries or (z) any credit policy or standard of it or its banking
subsidiary, including, without limitation, criteria relating to placement of a
debtor on any credit watch or other similar list maintained by it or its
subsidiary;
(vii) with respect to any loan or other credit
arrangement made by it or its banking subsidiary, any write off or write down
of or any determination to write off or write down any such loan or other
credit arrangement in an aggregate amount exceeding $10,000 per month;
(viii) except for the sale of foreclosed properties,
or properties received in lieu of foreclosure in the ordinary course of
business consistent with past practice, any acquisition or disposition of, or
incurrence of a lien or other encumbrance on, any assets and properties of it
or its banking subsidiary;
(ix) any (x) amendment of the certificate or
articles of incorporation or by-laws (or other comparable corporate charter
documents) of it or its subsidiaries, (y) reorganization, liquidation or
dissolution of it or its subsidiaries or (z) merger, consolidation or business
combination involving it or its subsidiaries and any other person;
(x) any capital expenditures or commitments for
additions to property, plan or equipment of it or its subsidiaries constituting
capital assets in an aggregate amount exceeding $100,000;
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(xi) any commencement or termination by it or its
subsidiaries of any line of business;
(xii) any transaction by it or its subsidiaries with
any officer, director, affiliate or associate of it or its subsidiary or any
affiliate or associate of any such officer, director or affiliate (other than
it or its subsidiary) (A) outside the ordinary course of business consistent
with past practice or (B) other than on an arm's-length basis, other than
pursuant to any Contract in effect on December 31, 1999 and disclosed in
Schedule 4.1(H);
(xiii) any agreement to do or engage in any of the
foregoing;
(xiv) any other transaction involving, or
development affecting, it or its subsidiaries outside the ordinary course of
business consistent with past practice, except as disclosed in Schedule 4.1(H).
(I) NO UNDISCLOSED LIABILITIES. Except as referred to or
reserved against in its Financial Statements, there are no liabilities against,
relating to or affecting it or its subsidiary or any of their respective assets
and properties, other than liabilities incurred in the ordinary course of
business consistent with past practice which in the aggregate are not material
to the business, financial condition or results of operations of it or its
subsidiaries.
(J) LITIGATION; REGULATORY ACTION. Except as set forth in
Schedule 4.1(J) or in its Financial Statements, no litigation, proceeding, or
controversy before any court or governmental agency is pending which, either by
itself or in the aggregate with one or more other events, occurrences or
circumstances, is reasonably likely to have a Material Adverse Effect on it
and, to the best of its knowledge, no such litigation, proceedings or
controversy has been threatened; and except as set forth in Schedule 4.1(J),
neither it nor any of its subsidiaries is a party to, or subject to any order,
decree, agreement, memorandum of understanding or similar arrangement with, or
a commitment letter or similar submission to, or has adopted any board
resolution at the request of, any federal, state or other government,
governmental agency or authority charged with the supervision or regulation of
financial institutions or their holding companies or the issuance of securities
or engaged in the insurance of deposits (including, without limitation, the
Florida Department of Banking, the Board of Governors of the Federal Reserve
System and the Federal Deposit Insurance Corporation) or the supervision or
regulation of it or any of its subsidiaries or properties (collectively, the
"REGULATORY AUTHORITIES"); and neither it nor any of its subsidiaries has been
advised by any Regulatory Authority that such authority is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding,
commitment letter or similar submission or any such resolutions.
(K) COMPLIANCE WITH LAWS. Each of its and its subsidiaries is
in material compliance, in the conduct of its business, with all applicable
federal, state and local statutes, laws, regulations, ordinances, rules,
judgments, orders or decrees applicable thereto or to the employees conducting
such businesses, including, without limitation, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act and all other
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applicable fair lending laws relating to discriminatory business practices; and
each of it and its banking subsidiary has all permits, licenses,
authorizations, orders and approvals of, and has made all filings, applications
and registrations with, all Regulatory Authorities that are required in order
to permit them to conduct their businesses substantially as presently
conducted; all such permits, licenses, certificates of authority, orders and
approvals are in full force and effect and, to the best of its knowledge, no
suspension or cancellation of any of them is threatened; and neither it nor its
banking subsidiary has received notification or communication from any
Regulatory Authority (i) asserting that it or its subsidiary is not in material
compliance with any of the statutes, regulations, or ordinances which such
Regulatory Authority enforces or (ii) threatening to revoke any license,
franchise, permit, or governmental authorization or (iii) threatening or
contemplating revocation or limitation of, or which would have the effect of
revoking or limiting, federal deposit insurance (nor, to its knowledge, do any
grounds for any of the foregoing exist).
(L) MATERIAL CONTRACTS. Except as set forth in Schedule
4.1(L) or in its Financial Statements, and except for this Plan, neither it nor
its subsidiaries are bound by any material contract, agreement or other
arrangement to be performed after the date hereof.
(M) DEFAULTS. Neither it nor its subsidiaries are in default
under any material contract, agreement, commitment, arrangement, lease,
insurance policy or other instrument to which it is a party, by which its
respective assets, business, or operations may be bound or affected, or under
which it or its respective assets, business, or operations receives benefits,
and there has not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default. Neither it nor its
subsidiaries are subject to, or bound by, any Contract containing covenants
which (i) limit the ability of it or any such subsidiary to compete in any
material line of business or with any person, or (ii) involve any material
restriction of geographical area in which, or method by which, it or its
subsidiary may carry on its business (other than as may be required by law or
any applicable Regulatory Authority).
(N) REAL PROPERTY. Except as set forth in Schedule 4.1(N), it
and its subsidiaries do not own any real property. Schedule 4.1(N) also
contains a true and correct list of each parcel of real property leased by it
or its subsidiaries (as lessor or lessee).
(i) It or its subsidiaries have a valid and
subsisting leasehold estate in and the right to quiet enjoyment of the real
properties leased by any of them as lessee for the full term of the lease
thereof. Each lease referred to in this paragraph (i) is a legal, valid and
binding agreement, enforceable in accordance with its terms, and there is no,
and neither it nor any subsidiary has received notice of any, default, or any
condition or event which, after notice or lapse of time or both, would
constitute a default thereunder. Neither it nor any subsidiary owes any
brokerage commissions with respect to any such leased space.
(ii) Except as disclosed in Schedule 4.1(N), the
improvements on the real property identified therein are in good operating
condition and in a state of good maintenance and repair, ordinary wear and tear
excepted, are adequate and suitable for the purposes for which they are
presently being used and, to its knowledge, there are no condemnation or
appropriation proceedings pending or threatened against any of such real
property or the improvements thereon.
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(O) TANGIBLE PERSONAL PROPERTY. It and its subsidiaries are
in possession of and have good title to, or have valid leasehold interests in
or valid rights under contact to use, all tangible personal property used in
the conduct of their business, including all tangible personal property
reflected on its Financial Statements and tangible personal property acquired
subsequent to September 30, 2000, other than property disposed of since such
date in the ordinary course of business consistent with past practice. All such
tangible personal property is free and clear of all liens, other than liens
disclosed in Schedule 4.1(O), and is in good working order and condition,
ordinary wear and tear excepted, and its use complies in all material respects
with all applicable laws.
(P) INTELLECTUAL PROPERTY RIGHTS. Schedule 4.1(P) lists all
Intellectual Property (as such term is hereinafter defined) owned by it or its
subsidiaries or used in their business and operations as currently conducted.
Except as set forth in Schedule 4.1(P), it or its subsidiaries have such
ownership and use (free and clear of all liens) of, or rights by license, lease
or other agreement to use (free and clear of all liens), such Intellectual
Property as is necessary to permit them to conduct their business and
operations as currently conducted, except where the failure to have any such
right would not have a material adverse effect on their business, financial
condition or results of operations. Except as disclosed in Schedule 4.1(P), (i)
all registrations with and applications to Regulatory Authorities in respect of
such Intellectual Property are valid and in full force and effect and are not
subject to the payment of any taxes or maintenance fees or the taking of any
other actions to maintain their validity or effectiveness, (ii) there are no
restrictions on the direct or indirect transfer of any license, or any interest
therein in respect of such Intellectual Property, (iii) it and its subsidiaries
have taken reasonable security measures to protect the secrecy, confidentiality
and value of their trade secrets, (iv) neither it nor any subsidiary is, or has
received any notice that it is, in default (or with the giving of notice or
lapse of time or both, would be in default) under any license to use such
Intellectual Property and (v) neither it nor any subsidiary has any knowledge
that such Intellectual Property is being infringed by any other person. Neither
it nor any subsidiary has received notice that any of them are infringing any
Intellectual Property of any other person, no claim is pending or, to their
knowledge (after having made due inquiry), has been made to such effect that
has not been resolved and, to their knowledge (after having made due inquiry),
they are not infringing any Intellectual Property rights of any other person.
For purposes of this Plan "INTELLECTUAL PROPERTY" means all patents and patent
rights, trademarks and trademark rights, trade names and trade name rights,
service marks and service xxxx rights, service names and service name rights,
brand names, inventions, processes, formulae, copyrights and copyright rights,
trade dress, business and product names, logos, slogans, trade secrets,
industrial models, processes, designs, methodologies, computer programs
(including all source codes) and related documentation, software license and
sub-license agreements, end-user license agreements for software, software
maintenance agreements, technical information, manufacturing, engineering and
technical drawings, know-how and all pending applications for and registrations
of patents, trademarks, service marks and copyrights.
(Q) NO BROKERS. Except as set forth in Schedule 4.1(Q), all
negotiations relative to this Plan and the transactions contemplated hereby
have been carried on by it and its agents directly with the other parties
hereto and their agents and no action has been taken by it that would give rise
to any valid claim against any party hereto for a brokerage commission,
finder's fee or other like payment.
(R) EMPLOYEE BENEFIT PLANS. Except as Previously Disclosed:
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(i) Each party has delivered to the other a true and
complete copy of each "employee benefit plan" within the meaning of section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), covering employees or former employees of it and Peninsula Bank (the
"EMPLOYEES").
(ii) All employee benefit plans of each party
covering Employees, to the extent subject to ERISA (the "ERISA PLANS"), have
been operated and administered, and are in material compliance with, applicable
law, including ERISA, the Code, the Securities Act, the Exchange Act, the Age
Discrimination in Employment Act or any rules or regulations thereunder, and
all filings, disclosures and notices required by any such laws have been timely
made, except for failures to so comply which are not reasonably likely, either
by themselves or in the aggregate with one or more other events, occurrences or
circumstances, to have a Material Adverse Effect on it. Each ERISA Plan which
is an "employee pension benefit plan" within the meaning of Section 3(2) of
ERISA ("PENSION PLAN") and which is intended to be qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "CODE"), has
either (a) received a favorable determination letter from the Internal Revenue
Service; or (b) is or will be the subject of an application for a favorable
determination letter, and it is not aware of any circumstances likely to result
in the revocation or denial of any such favorable determination letter. There
is no pending or, to the best of its knowledge, threatened litigation relating
to the ERISA Plans which is reasonably likely, either by itself or in the
aggregate with one or more other events, occurrences or circumstances, to have
a Material Adverse Effect on it; and neither it nor any of its subsidiaries has
engaged in a transaction with respect to any ERISA Plan that, assuming the
taxable period of such transaction expired as of the date hereof, would subject
it or any of its subsidiaries to a tax or penalty imposed by either Section
4975 of the Code or Section 502 of ERISA in an amount which is reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect on
it.
(iii) No liability under Subtitle C or D of Title IV
of ERISA has been or is expected to be incurred by Peninsula or Peninsula Bank
with respect to any ongoing, frozen or terminated "single-employer plan",
within the meaning of Section 4001(a) (15) of ERISA, currently or formerly
maintained by any of them or any entity which is considered one "employer" with
it under Section 4001 (a) (14) of ERISA or Section 414 of the Code (an "ERISA
AFFILIATE"), which liability is reasonably likely to have either by itself or
in the aggregate with one or more other events, occurrences or circumstances a
Material Adverse Effect on it. Peninsula and Peninsula Bank have not incurred
and do not expect to incur any withdrawal liability with respect to a
multi-employer plan under Subtitle E of Title IV of ERISA. No notice of a
"reportable event" within the meaning of Section 4043 of ERISA for which the
30-day reporting requirement has not been waived, has been required to be filed
for any Pension Plan or the Pension Plan of an ERISA Affiliate ("ERISA
AFFILIATE PLAN") within the 12-month period ending on the date hereof. To
Peninsula's knowledge, there is no pending investigation or enforcement action
by the Pension Benefit Guaranty Corporation ("PBGC"), the Department of Labor
(the "DOL") or the IRS or any other governmental agency with respect to any
employee benefit plan.
(iv) All contributions required to be made under the
terms of any ERISA Plan of either party or any ERISA Affiliate have been timely
made; and no pension plan of either party or any ERISA Affiliate has an
"accumulated funding deficiency" (whether or not waived) within the meaning of
Section 412 of the Code or Section 302 of ERISA.
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(v) Under each Pension Plan or ERISA Affiliate Plan,
as of the last day of the most recent plan year ended prior to the date hereof,
the actuarially determined present value of all "benefit liabilities," within
the meaning of Section 4001(a) (16) of ERISA (as determined on the basis of the
actuarial assumptions contained in the Pension Plan's or ERISA Affiliate Plan's
most recent actuarial valuation) did not exceed the then current value of the
assets of such Pension Plan or ERISA Affiliate Plan, and there has been no
material adverse change in the financial position of such Pension Plan or ERISA
Affiliate Plan since the last day of the most recent plan year nor any
amendment or other change to such Pension Plan or ERISA Affiliate Plan that
would increase the amount of benefits thereunder which in either case
reasonably could be expected to change such result.
(vi) There are no material current or projected
liabilities for retiree health or life insurance benefits;
(S) NO REGULATORY IMPEDIMENT. It knows of no reason why the
regulatory approvals referred to in Section 6.2 should not be obtained.
(T) LABOR MATTERS. Neither it nor any subsidiary is a party
to, or bound by any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is it
the subject of a proceeding asserting that it or any subsidiary has committed
an unfair labor practice (within the meaning of the National Labor Relations
Act) or seeking to compel it or its subsidiary to bargain with any labor
organization as to wages and conditions of employment, nor is there any strike
or other labor dispute involving it, pending or, to the best of its knowledge,
threatened, nor is it aware of any activity involving its employees seeking to
certify a collective bargaining unit or engaging in any other organization
activity.
(U) INSURANCE. Schedule 4.1(U) contains a true and complete
list (including the names and addresses of the insurers, the expiration dates
thereof, the annual premiums and payment thereof and a brief description of the
interests insured thereby) of all liability, property, workers' compensation,
directors' and officers' liability and other insurance policies currently in
effect that insure the business, operations or employees of it or any
subsidiary or affect or relate to the ownership, use or operation of any of
their assets and properties and that (i) have been issued to any of them or
(ii) have been issued to any person for their benefit. The insurance coverage
provided by the policies described in clause (i) above will not terminate or
lapse by reason of the transactions contemplated by this Plan. Each policy
listed in Schedule 4.1(U) is valid and binding and in full force and effect, no
premiums due thereunder have not been paid and neither it, any subsidiary nor
the person to whom such policy has been issued has received any notice of
cancellation or termination in respect of any such policy or is in default
thereunder. The insurance policies listed in Schedule 4.1(U), in light of the
respective business, operations and assets and properties of it and its
subsidiaries, are in amounts and have coverages that are reasonable and
customary for persons engaged in such businesses and operations and having such
assets and properties. Neither it nor its subsidiaries have received notice
that any insurer under any insurance policy (x) is denying liability with
respect to a claim thereunder or defending under a reservation of rights clause
or (y) has filed for protection under applicable bankruptcy or insolvency laws
or is otherwise in the process of liquidating or has been liquidate. Schedule
4.1(U) sets forth a complete and accurate list of all claims in excess of
$25,000 made under the policies and binders described in
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clause (i) above since December 31, 1999. Neither it nor its subsidiaries have
or maintain any self- insurance arrangement.
(V) AFFILIATE TRANSACTIONS. Except as disclosed in Schedule
4.1(V), in any other Schedule to this Plan or in the Financial Statements, as
of the date of this Agreement there are no intercompany liabilities between
Peninsula and Peninsula Bank, on the one hand, and Southern and its
subsidiaries, on the other. Neither any officer, director, affiliate or
associate of Peninsula or Southern, nor any associate of any such officer,
director or affiliate, provides or causes to be provided any assets, services
of facilities to Peninsula or Southern, respectively; neither Peninsula nor
Southern provides or causes to be provided any assets, services or facilities
to any such officer, director, affiliate or associate; and neither Peninsula
nor Southern beneficially owns, directly or indirectly, any assets of any such
officer, director, affiliate or associate. Except as disclosed in Schedule
4.1(V), in any other Schedule to this Plan or in the Financial Statements, each
of the liabilities and transactions referred to in the previous sentence was
incurred or engaged in, as the case may be, on an arm's length basis. Except as
disclosed in Schedule 4.1(V), since December 31, 1999, all settlements of
intercompany liabilities between Peninsula and Peninsula Bank, on the one hand,
Southern and its subsidiaries on the other, and all such settlements between
Peninsula and Southern and their respective officers, directors, affiliates and
associates, have been made, and all allocations of intercompany expenses have
been applied, in the ordinary course of business consistent with past practice.
(W) ASSET CLASSIFICATION. Set forth on Schedule 4.1(W) is a
list, accurate and complete in all material respects, of all loans, extensions
of credit or other assets that are classified as of September 30, 2000 by it
(the "ASSET CLASSIFICATION"); and no amounts of loans, extensions of credit or
other assets that are classified by Peninsula Bank and Southern Bank as of
September 30, 2000 by any regulatory examiner as "Other Assets Especially
Mentioned", "Substandard", "Doubtful," "Loss," or words of similar import are
excluded from the amounts disclosed in the Asset Classification, other than
amounts of loans, extensions of credit or other assets that were charged off by
Peninsula Bank and Southern Bank, respectively, prior to September 30, 2000.
The allowances for loan losses disclosed in the Financial Statements were, and
the allowances for loan losses for periods ending after the date of this Plan
will be, adequate as of the date thereof, under generally accepted accounting
principles consistently applied to banks and bank holding companies and under
all other regulatory requirements, for all losses reasonably anticipated in the
ordinary course of business as of the date thereof based on information
available as of such date, and the assets comprising other real estate owned
and in-substance foreclosures included in any of their non-performing assets
are carried net of reserves at the lower of cost or market value based on
current independent appraisals or current management appraisals.
(X) TAKEOVER LAWS; DISSENTERS' RIGHTS. It has taken all
necessary action to exempt the transactions contemplated by this Plan from, or
the transactions contemplated by this Plan are otherwise exempt from, the
requirements of any "moratorium," "control share," "fair price," "affiliate
transaction," "control transaction," "business combination" or other
anti-takeover laws and regulations (collectively, the "TAKEOVER LAWS") of the
State of Florida, including, without limitation, Sections 607.0901 and
607.0902, Florida Statutes.
(Y) ENVIRONMENTAL MATTERS. Except as set forth in Schedule
4.1(Y), to the best of its knowledge:
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(i) neither it nor any subsidiary, nor any
properties owned or operated by it or any subsidiary, has been or is in
violation of or liable under any Environmental Law (as such term is defined in
subsection (iii) below), except for such violations or liabilities that, either
by themselves or in the aggregate with one or more other events, occurrences or
circumstances, would not have a Material Adverse Effect on its assets,
business, financial condition or results of operations taken as a whole. There
are no (and there is no reasonable basis for any) actions, suits or
proceedings, or demands, claims, notices or investigations including, without
limitation, notices, demand letters or requests for information from any
environmental agency or other person, instituted, pending or threatened
relating to the liability of any property owned or operated by it or any
subsidiary under any Environmental Law.
(ii) Neither it nor any subsidiary has received any
notice, citation, summons or order, complaint or penalty assessment by any
governmental or other entity or person with respect to a property in which it
or any subsidiary holds a security interest or other lien for (i) any alleged
violation of Environmental Law, (ii) any failure to have any environmental
permit, certificate, license, approval, registration, and (iii) any use,
possession, generation, treatment, storage, recycling, transportation or
disposal of any Hazardous Material (as such term is defined in subsection (3),
below).
(iii) The following definitions apply for purposes
of this Plan: "ENVIRONMENTAL LAW" means (i) any federal, state or local law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, legal doctrine, order, judgment, decree, injunction,
requirement or agreement with any governmental entity, relating to (a) the
protection, preservation or restoration of the environment, (including, without
limitation, air, water vapor, surface water, groundwater, drinking water
supply, surface land, subsurface land, plant and animal life or any other
natural resource), or to human health or safety, or (b) the exposure to, or the
use, storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of Hazardous Material, in
each case as amended and as in effect on or prior to the date of this Plan and
includes, without limitation, the Federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act, the Federal Water Pollution Control Act of 1972, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments thereto), the Federal Solid Waste Disposal and the Federal Toxic
Substances Control Act, and the Federal Insecticide, Fungicide and Rodenticide
Act, the Federal Occupational Safety and Health Act of 1970, each as amended
and as now in effect, and (ii) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as negligence,
nuisance, trespass and strict liability) that may impose liability or
obligations for injuries or damages due to, or threatened as a result of, the
presence of or exposure to any Hazardous Material; "HAZARDOUS MATERIAL" means
any substance presently listed, defined, designated or classified as hazardous,
toxic, radioactive or dangerous, or otherwise regulated, under any
Environmental Law, whether by type or quantity, and includes, without
limitation, any oil or other petroleum product, toxic waste, pollutant,
contaminant, hazardous substance, toxic substance, hazardous waste, special
waste or petroleum or any derivative or by-product thereof, radon, radioactive
material, asbestos, asbestos containing material, urea formaldehyde foam
insulation, lead and polychlorinated biphenyl;
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(Z) TAX MATTERS. Except as set forth in Schedule 4.1(Z), (i)
all reports and returns with respect to Taxes (as defined below) that are
required to be filed by or with respect to it or its subsidiary (collectively,
the "TAX RETURNS"), have been duly filed, or requests for extensions have been
timely filed and have not expired except to the extent any such filing is not
yet due or all such failures to file, taken together, are not reasonably likely
to have either by themselves or in the aggregate with one or more other events,
occurrences or circumstances, a Material Adverse Effect on it, and such Tax
Returns were true, complete, accurate and correct in all material respects,
(ii) all taxes (which shall mean federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, production, sales, use,
occupancy, license, excise, franchise, employment, withholding or similar taxes
imposed on the income, properties, operations or activities of it, together
with any interest, additions, or penalties with respect thereto and any
interest in respect of such additions or penalties, collectively the "TAXES")
shown to be due on the Tax Returns have been paid in full on or before the due
date or are being contested in good faith and adequately reserved for on its
consolidated balance sheet, (iii) the Tax Returns have never been examined by
the Internal Revenue Service, (iv) no notice of deficiency, pending audit or
assessment with respect to the Tax Returns has been received from the
appropriate state, local or foreign taxing authority, or the period for
assessment of the Taxes in respect of which such Tax Returns were required to
be filed has expired, (v) all Taxes due with respect to completed and settled
examinations have been paid in full, (vi) no issues have been raised by the
relevant taxing authority in connection with the examination of any of the Tax
Returns which are reasonably likely to result in a determination that would
have, either by themselves or in the aggregate with one or more other events,
occurrences or circumstances, a Material Adverse Effect on it, except as
reserved against in its Financial Statements, and (vii) no waivers of statutes
of limitations have been given by or requested with respect to any Taxes of it.
(AA) REORGANIZATION. It is aware of no reason why the Merger will fail
to qualify as a reorganization under Section 368(a) of the Code.
(BB) ARTICLES AND BYLAWS. It has previously delivered to the other
party the articles of incorporation and bylaws (or other comparable corporate
charter documents) of it and each of its subsidiaries which are true, correct
and complete copies of such documents as in effect on the date of this Plan.
(CC) DISCLOSURE. All material facts to the business, financial
condition or results of operations of it or its subsidiaries have been
disclosed to the other party in connection with this Plan. No representation or
warranty contained in this Plan, and no statement contained in the Schedules
hereto or in any certificate, list or other writing furnished pursuant to any
provision of this Plan contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements herein
or therein, in the light of the circumstances under which they were made, not
misleading.
VI. COVENANTS.
Peninsula hereby covenants to Southern, and Southern hereby covenants to
Peninsula, that:
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6.1 REASONABLE BEST EFFORTS. Subject to the terms and conditions of
this Plan, it shall use its best efforts in good faith to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary,
proper or desirable, or advisable under applicable laws, as promptly as
practicable so as to permit consummation of the Merger at the earliest possible
date and to otherwise enable consummation of the transactions contemplated
hereby and shall cooperate fully with the other party hereto, and each party
shall use, and shall cause each of their respective subsidiaries to use, its
best efforts to cause to be satisfied the conditions referred to in Article VI,
to lift or rescind any injunction, restraining order or other order adversely
affecting the ability of the parties to consummate the transactions
contemplated by this Plan, to obtain all consents (governmental or other)
necessary or desirable for the consummation of the transactions contemplated by
this Plan and to defend any litigation seeking to enjoin, prevent or delay the
consummation of the transactions contemplated by this Plan.
6.2 PRESS RELEASES. Unless approved by the other party hereto in
advance, it will not issue any press release or written statement for general
circulation relating to the transactions contemplated hereby, except as
otherwise required by law.
6.3 ACCESS; INFORMATION.
(A) Upon reasonable notice, it will afford the other party
hereto, and its officers, employees, counsel, accountants and other authorized
representatives, access, during normal business hours throughout the period
prior to the Merger Effective Date to all of its properties, books, contracts,
commitments and records and, during such period, it shall furnish promptly to
the other party hereto, (i) a copy of each material report, schedule and other
document filed by it pursuant to the requirements of federal or state banking
or other laws, and (ii) all other information concerning its business,
properties and personnel as the other parties hereto may reasonably request. No
party shall be required to provide access to or to disclose information where
such access or disclosure would violate or prejudice the rights of its
customers, jeopardize the attorney-client or similar privilege with respect to
such information or contravene any law, rule, regulation, order, judgment,
decree, fiduciary duty or agreement entered into prior to the date hereof. The
parties will use their reasonable best efforts to make appropriate substitute
disclosure arrangements, to the extent practicable, in circumstances in which
the restrictions of the preceding sentence apply.
(B) No investigation pursuant to this Section 5.3 by any
party shall affect or be deemed to modify or waive any representation or
warranty made by any other party hereto or the conditions to the obligation of
the first party to consummate the transactions contemplated by this Plan; and
each party hereto will not use any information obtained pursuant to this
Section 5.3 for any purpose unrelated to this Plan, the consummation of the
transactions contemplated hereby and, if the Merger is not consummated, will
hold all information and documents obtained pursuant to this paragraph in
confidence (as provided in Section 8.6) unless and until such time as such
information or documents become publicly available other than by reason of any
action or failure to act by such party or as it is advised by counsel that any
such information or document is required by law to be disclosed, and in the
event of the termination of this Plan, each party will, upon request by the
other party, deliver to the other all documents so obtained by it or destroy
such documents.
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6.4 ACQUISITION PROPOSALS. In the case of Peninsula only, it shall not
solicit or encourage inquiries or proposals with respect to, or, except as
required by the fiduciary duties of its Board of Directors (as advised in
writing by its counsel), furnish any nonpublic information relating to or
participate in any negotiations or discussions concerning, any tender offer or
exchange offer for, or any proposal for the acquisition or purchase of all or a
substantial portion of its assets, or a substantial equity interest in it or in
any of its subsidiaries, or any merger or other business combination other than
as contemplated by this Plan, and it shall instruct its officers, directors,
agents, advisors and affiliates to refrain from doing any of the foregoing;
provided that, notwithstanding the foregoing, it may communicate information
about any such proposal to its stockholders if and to the extent that it is
legally required to do so (as advised in writing by its counsel); it shall
notify the other party immediately if any such inquiries or proposals are
received by it or if any person seeks to initiate such negotiations or
discussions.
6.5 PLACEMENT AGREEMENTS. In the case of Peninsula only, it will cause
each of its executive officers and directors to execute and deliver to Southern
on or before the Merger Effective Date an agreement in the form attached hereto
as Schedule 5.5 making certain representations and warranties and restricting
the disposition of the shares of Southern Common Stock to be received by such
person in exchange for such person's shares of Peninsula Common Stock or shares
of Southern Common Stock issuable pursuant to the exercise of the Peninsula
Options, as applicable.
6.6 TAKEOVER LAWS. It shall not take any action that would cause the
transactions contemplated by this Plan to be subject to any applicable state
takeover statute in effect as of the date of this Plan and shall take all
necessary steps to exempt (or ensure the continued exemption of) the
transactions contemplated by this Plan from, or if necessary challenge the
validity or applicability of, any applicable state takeover law, as now or
hereafter in effect, including, without limitation, the provisions of Section
607.0902, Florida Statutes.
6.7 NO RIGHTS TRIGGERED.
(A) It shall take all necessary steps to ensure that the
entering into of this Plan and the consummation of the transactions
contemplated hereby and thereby (including without limitation the Merger) and
any other action or combination of actions, or any other transactions
contemplated hereby or thereby do not and will not (i) result in the grant of
any rights or claims under it's articles of incorporation or bylaws or under
any agreement to which it or any of its subsidiaries is a party, or (ii)
restrict or impair in any way the ability of the other party to exercise the
rights granted hereunder.
(B) It shall not adopt any plan or arrangement that would
adversely affect in any way the rights of the other party under this Plan.
6.8 REGULATORY APPLICATIONS. It undertakes and agrees to use its best
efforts to cause the Merger to be effected, including, without limitation,
promptly preparing and filing any and all regulatory applications and
disclosure documents.
6.9 QUARTERLY INFORMATION. It shall promptly after the end of each
fiscal quarter after the date of this Plan and on the Merger Effective Date
provide the other party with a list of all of its loans,
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extensions of credit or other assets that have been classified internally or by
any regulatory examiner since the date it provided the other party with the
Asset Classification.
6.10 NOTIFICATION OF CERTAIN MATTERS. It shall give prompt notice to
the other party of any fact, event or circumstance known to it that (i) is
reasonably likely, individually or taken together with all other facts, events
and circumstances known to it, to result in any Material Adverse Effect with
respect to it, or (ii) would cause or constitute a material breach of any of
its representations, warranties, covenants or agreements contained herein.
6.11 REGISTRATION STATEMENT. The shares of Southern Common Stock to be
issued to Peninsula shareholders in the Merger shall be registered by Southern
under the Securities Act of 1933, as amended, and applicable state securities
laws.
6.12 INDEMNIFICATION. For a period of six years after the Merger
Effective Date, Southern shall indemnify, defend and hold harmless each
director and executive officer of Peninsula and Peninsula Bank against all
liabilities arising out of actions or omissions occurring upon or prior to the
Merger Effective Date (including without limitation the transactions
contemplated by this Plan) to the extent authorized under Florida law.
VII. CONDITIONS TO CONSUMMATION OF THE MERGER.
Consummation of the Merger is conditioned upon:
7.1 STOCKHOLDER VOTE. Approval of the Merger and the other
transactions contemplated hereby by the required vote of the stockholders of
Peninsula and Southern as and to the extent required by law.
7.2 REGULATORY APPROVALS. Procurement by Southern and Peninsula of all
requisite approvals and consents of Regulatory Authorities, and the expiration
of applicable statutory waiting periods relating thereto, provided, however,
that no such approval or consent shall have imposed any condition or
requirement (other than conditions or requirements set forth in any Schedule
hereto) which would so materially and adversely impact the economic or business
benefits to Southern or the stockholders of Peninsula of the transactions
contemplated by this Plan that, had such condition or required been known, such
party would not, in its reasonable judgment, have entered into this Plan.
7.3 THIRD PARTY CONSENTS. All consents or approvals of all persons
(other than Regulatory Authorities) required for the consummation of the Merger
shall have been obtained and shall be in full force and effect, unless the
failure to obtain any such consent or approval is not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Peninsula
or Southern.
7.4 NO PROHIBITION. There not being in effect any law, order, decree
or injunction of any court or agency of competent jurisdiction that restrains,
enjoins or otherwise prohibits or makes illegal consummation of the Merger or
which could be reasonably expected to result in a material diminution of the
benefits of the transaction to Southern or the stockholders of Peninsula, and
there shall not be
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pending or threatened on the Merger Effective Date any action or proceeding
which could reasonably be expected to result in the enactment or issuance of
any such law, order, decree or injunction.
7.5 LEGAL OPINIONS.
(A) The receipt by Peninsula and its directors of an opinion,
dated the Merger Effective Date, of Xxxxxx & Xxxxx, LLP, counsel for Southern,
in form and substance reasonably satisfactory to Peninsula; and
(B) The receipt by Southern and its directors of an opinion,
dated the Merger Effective Date, of Smith, Mackinnon, Greeley, Bowdoin,
Edwards, Xxxxxxxx & Marks, P.A., counsel to Peninsula, in form and substance
reasonably satisfactory to Southern.
7.6 REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) Each of the
representations and warranties contained herein of any party being true and
correct as of the date of this Plan and upon the Merger Effective Date with the
same effect as though all such representations and warranties had been made on
the Merger Effective Date, except (x) for any such representations and
warranties made as of a specified date, which shall be true and correct as of
such date, (y) as expressly contemplated by this Plan, or (z) for
representations and warranties (other than the representations and warranties
set forth in Paragraph (A) of Article IV, which shall be true and correct in
all material respects) the inaccuracies of which relate to matters that,
individually or in the aggregate, do not materially adversely affect the Merger
and the other transactions contemplated by this Plan; (ii) each and all of the
agreements and covenants contained herein of any party to be performed and
complied with pursuant to this Plan and the other agreements contemplated
hereby prior to the Merger Effective Date shall have been duly performed and
complied with in all material respects, and (iii) each of Peninsula and
Southern shall have received a certificate signed by the Chief Executive
Officer and the Chief Financial Officer of the other party dated the Merger
Effective Date, to such effect.
7.7 PLACEMENT AGREEMENTS. Southern shall have received a completed and
executed placement agreement from each of Peninsula's executive officers and
directors.
7.8 TAX OPINION. Southern and Peninsula shall have received an opinion
from Xxxxxx & Xxxxx, LLP, to the effect that the Merger constitutes a
reorganization under Section 368 of the Code and that no gain or loss will be
recognized by the shareholders of Peninsula who receive shares of Southern
Common Stock except to the extent of any cash received by such persons from
Southern, which such opinion may rely upon factual representations contained in
certificates of officers of Southern, Peninsula and others.
7.9 ELECTION OF DIRECTORS. The election or appointment of the
directors of Southern and as set forth in Section 1.1(D).
7.10 OPINION OF FINANCIAL ADVISOR.
(A) Peninsula having received the written opinion of
ProfessionalBankServices, Inc., in form and substance satisfactory to
Peninsula, as to the fairness of the Merger to the stockholders of
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Peninsula from a financial point of view, dated as of the date of this Plan and
as of the date of any solicitation of proxies from the stockholders of
Peninsula for a vote to approve this Plan and the Merger.
(B) Southern having received the written opinion of The
Xxxxxx Xxxxxx Company, in form and substance satisfactory to Southern, as to
the fairness of the Merger to the stockholders of Southern from a financial
point of view as of the date of this agreement and as of the date of any
solicitation of proxies from the stockholders of Southern for a vote to approve
this Plan and the Merger.
Provided, however, a failure to satisfy any of the conditions set forth in
Sections 6.5(B) and 6.10(B) shall only constitute conditions if asserted by
Southern; and a failure to satisfy any of the conditions set forth in Sections
6.5(A), 6.9, and 6.10(A) of this Article VI shall only constitute conditions if
asserted by Peninsula.
VIII. TERMINATION.
8.1 TERMINATION. This Plan may be terminated prior to the Merger
Effective Date either before or after receipt of required shareholder
approvals:
(A) MUTUAL CONSENT. At any time prior to the Merger Effective
Date, by the mutual consent of Southern and Peninsula, if the Board of
Directors of each so determines by vote of a majority of the members of its
entire Board;
(B) BREACH. At any time prior to the Merger Effective Date,
by Southern or Peninsula, if its Board of Directors so determines by vote of a
majority of the members of its entire Board, in the event of (i) a breach by
the other party of any representation or warranty contained herein, which
breach has not been cured within thirty (30) days after the giving of written
notice to the breaching party of such breach and which breaches, individually
or in the aggregate, materially adversely affect the Merger and the other
transactions contemplated by this Plan, or (ii) a material breach by the other
party of any of the covenants or agreements contained herein, which breach has
not been cured within thirty (30) days after the giving of written notice to
the breaching party of such breach.
(C) DELAY. By Southern or Peninsula, if its Board of
Directors so determines by vote of a majority of the members of its entire
Board, in the event that the Merger is not consummated by June 30, 2001;
provided, however, that such date may be extended by an agreement in writing
among the parties hereto approved by their respective Boards of Directors and
executed in the same manner as this Plan;
(D) NO APPROVAL. By Peninsula, if its Board of Directors so
determines by a vote of a majority of the members of its entire Board, in the
event that any stockholder approval contemplated by Section 6.1 is not obtained
at a meeting or meetings called for the purpose of obtaining such approval; or
(E) FAILURE TO RECOMMEND, ETC. By Southern, at any time prior
to the stockholders' meeting of Peninsula, if the Board of Directors of
Peninsula shall have failed to recommend approval
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of the Merger, withdrawn such recommendation or modified or changed such
recommendation in a manner adverse to the interests of Southern.
8.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination
of this Plan and the abandonment of the Merger pursuant to this Article VII, no
party to this Plan shall have any liability or further obligation to any other
party hereunder except (i) as set forth in Section 8.1, and (ii) that
termination will not relieve a breaching party from liability for any willful
breach of this Plan giving rise to such termination.
IX. OTHER MATTERS.
9.1 SURVIVAL. If the Merger Effective Date occurs, the agreements of
the parties in Article II of this Plan and in Sections 5.12, 8.1, 8.3, 8.4,
8.6, 8.7 and 8.9 of the Plan shall survive the Merger Effective Date; the
representations, warranties, agreements and covenants contained in this Plan
shall be deemed to be conditions of the Merger and shall not survive the Merger
Effective Date. If this Plan is terminated prior to the Merger Effective Date,
the agreements and representations of the parties in Sections 4.1(Q), 5.3(B),
7.2, 8.1, 8.4, 8.5, 8.6 and 8.9 shall survive such termination.
9.2 WAIVER OR AMENDMENT. Prior to the Merger Effective Date, any
provision of this Plan may be (i) waived by the party benefitted by the
provision, or (ii) amended or modified at any time (including the structure of
the transaction), by an agreement in writing among the parties hereto approved
by their respective Boards of Directors and executed in the same manner as this
Plan, except that, after the vote by the stockholders of Peninsula, the
consideration to be received by the stockholders of Peninsula for each share of
Peninsula Common Stock shall not thereby be decreased.
9.3 COUNTERPARTS. This Plan may be executed in one or more
counterparts, each of which shall be deemed to constitute an original. This
Plan shall become effective when one counterpart has been signed by each party
hereto.
9.4 GOVERNING LAW. This Plan shall be governed by, and interpreted in
accordance with, the substantive laws of the State of Florida without regard to
its principles of conflicts of laws, except as federal law may be applicable.
9.5 EXPENSES. Each party hereto will bear all expenses incurred by it
in connection with this Plan and the transactions contemplated hereby.
9.6 CONFIDENTIALITY. Except as otherwise provided in Section 5.3, each
of the parties hereto and their respective agents, attorneys and accountants
will maintain the confidentiality of all information provided in connection
herewith which has not been publicly disclosed.
9.7 NOTICES. All notices, requests and other communications hereunder
to a party shall be in writing and shall be deemed to have been duly given when
delivered by hand, telegram or telex (confirmed in writing) to such party at
its address set forth below or such other address as such party may specify by
notice to the parties hereto:
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If to Southern, to Xxxxxxx X. Xxxxxxxx, Xx.
Chief Executive Officer
Southern Community Bancorp
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
With, in each Xxx Xxxxx, Esq.
instance, a copy to: Xxxxxx & Xxxxx, LLP
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
If to Peninsula, to: Xxxxxx X. Xxxxxx, Xx.
Chief Executive Officer
Peninsula Bancorp, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
With, in each Xxxx X. Xxxxxxx, Esq.
instance, a copy to: Smith, Mackinnon, Greeley, Bowdoin,
Edwards, Xxxxxxxx & Marks, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
9.8 DEFINITIONS. Any term defined anywhere in this Plan shall have the
meaning ascribed to it for all purposes of this Plan (unless expressly noted to
the contrary). In addition:
(A) the term "knowledge" when used with respect to a party
shall mean the knowledge, after due inquiry, of any "EXECUTIVE OFFICER" of such
party, as such term is defined in Regulation O of the Federal Reserve Board;
(B) the term "MATERIAL ADVERSE EFFECT" shall mean (a) an
event, occurrence or circumstance, which individually or in the aggregate,
results, or is reasonably likely to result, in a decrease in the shareholders'
equity account of a party, as determined in accordance with generally accepted
accounting principles and as measured from its Unaudited Financial Statements
in an amount equal to or greater than $100,000, including, without limitation,
(i) the making of any provisions for possible loan and lease losses,
write-downs of other real estate and taxes, (ii) operating losses and (iii) a
breach of a representation or warranty, or (b) a breach of a representation or
warranty which would materially impair the party's ability to perform its
obligations under this Plan or the consummation of the Merger and the other
transactions contemplated by this Plan; provided, however, that the term
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 generally
accepted accounting principles or regulatory accounting requirements applicable
to banks and bank holding companies generally; and (c) expenses accrued by
Southern in connection with the organization of Southern Community Bank of
Southwest Florida and the Offering.
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9.9 ENTIRE UNDERSTANDING; NO THIRD PARTY BENEFICIARIES. This Plan
represents the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and thereby and supersedes any and all other
oral or written agreements heretofore made. Nothing in this Plan expressed or
implied, is intended to confer upon any person, other than the parties hereto
or their respective successors, any rights, remedies, obligations or
liabilities under or by reason of this Plan.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed in counterparts by their duly authorized officers, all as of the
day and year first above written.
Attest: SOUTHERN COMMUNITY BANCORP
/s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------ --------------------------------------------------------------
Xxxxxxx X. Xxxxx, Secretary Xxxxxxx X. Xxxxxxxx, Xx., Chief Executive Officer
Attest: PENINSULA BANCORP, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX, XX.
------------------------------ -------------------------------------------------------------
Xxxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx, Xx., Chief Executive Officer
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