STOCK PURCHASE AGREEMENT
Exhibit 10.1
This Stock Purchase Agreement (“Agreement”) is made as of September 24, 2009, by and
between ROYAL BANCSHARES OF PENNSYLVANIA, INC., a Pennsylvania business corporation and registered
bank holding company (“Seller”), and ROYAL ASIAN BANCSHARES, INC., a Pennsylvania business
corporation (“Buyer”).
BACKGROUND:
1. Seller owns 5,000,000 shares (the “Shares”) of the outstanding common stock, $1.00
par value per share (the “Common Stock”), of Royal Asian Bank (“RAB”);
2. Xxxxxx X. Xxxx (“Shin”), President and Chief Executive Officer of RAB since its
commencement of operations as a separate wholly owned banking subsidiary of Seller in July 2006,
presently owns beneficially 312,500 shares of the Common Stock, pursuant to a grant of restricted
stock under the Royal Asian Bank 2008 Long-Term Incentive Plan evidenced by a restricted stock
agreement, dated November 4, 2008 (the “Shin Restricted Stock Agreement”), of which 62,500
shares of Common Stock have vested and are outstanding on the date hereof;
3. Shin, a director and the President of Buyer, and a group comprised of “accredited
investors” for purposes of Rule 506 under Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and up to thirty-five sophisticated
investors who do not qualify as “accredited investors,” have formed Buyer for the purpose of
conducting a private placement of the capital stock of Buyer (the “Buyer Private
Placement”) in an amount sufficient to permit Buyer to acquire the Shares and maintain RAB’s
status as “well capitalized” (or in such greater amount as may be required by the applicable
Governmental Authorities) thereafter under the regulations of the applicable Governmental Entities;
4. Concurrently with the execution of this Agreement, Seller and Buyer have executed an
escrow agreement, dated September 21, 2009 (the “Escrow Agreement”), pursuant to which
Buyer is depositing $250,000.00 with the Escrow Agent (as defined in the Escrow Agreement), which
amount will either be (i) credited toward the Purchase Price (as defined in Section 2.1), (ii)
payable to Seller under certain circumstances described in the Escrow Agreement upon termination of
this Agreement under the circumstances described in Section 10.2(b) hereof or (iii) returned to
Buyer under certain circumstances described in the Escrow Agreement upon any other termination of
this Agreement.
5. Seller desires to sell and transfer to Buyer, and Buyer desires to purchase, all of the
Shares on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties, promises, covenants, and
agreements hereinafter contained and intending to be legally bound, the parties hereby agree as
follows:
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1. DEFINITIONS
For purposes of this Agreement, capitalized terms used herein have the meanings specified or
referred to in Appendix A attached hereto.
2. SALE AND TRANSFER OF SHARES; CLOSING
2.1 Purchase and Sale of Shares; Purchase Price
Subject to the terms and conditions of this Agreement, at the Closing (as such term is
hereinafter defined in Section 2.2), Seller will sell and transfer all of the Shares to Buyer, and
Buyer will purchase the Shares from Seller for an aggregate purchase price (the “Purchase
Price”) of $15,217,988.00 to be paid in immediately available funds by wire transfer at Closing. By way of clarification, no consideration shall be payable for
any shares of Common Stock owned by Shin at the Closing Date, which shares of Common Stock, shall
remain issued and outstanding after the Closing Date and which shares of Common Stock shall not be
deemed to be part of or included in the Contemplated Transactions.
2.2 Closing
The closing for the purchase and sale of the Shares (the “Closing”) provided for in
this Agreement will take place at the offices of Seller’s counsel at 620 Freedom Business Center,
King of Prussia, Pennsylvania, on a date (the “Closing Date”) mutually selected by the
Seller and the Buyer which is within ten (10) business days after satisfaction of all conditions to
closing set forth herein, or at such other time and place as the parties may agree.
2.3 Closing Deliveries
At the Closing:
(a) Seller will deliver (or cause to be delivered) to Buyer:
(i) a stock certificate or certificates representing the Shares, duly endorsed by Seller (or
accompanied by duly executed stock powers);
(ii) separate letters, in form and substance reasonably satisfactory to Buyer, pursuant to
which those officers and directors designated by Buyer, if any, will resign their positions as of
the Closing;
(iii) a legal opinion of Xxxxxxx & Xxx, P.C., counsel to Seller, covering matters customary
for the type of transaction contemplated by the Agreement and which is reasonably satisfactory to
counsel to Buyer;
(iv) all files, books and records, wherever located, which pertain to the business, including
corporate minute books, books of account, general, financial, tax and personnel records, sales,
advertising and promotional literature, invoices, supplier lists and other documents and rights
relating thereto; and
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(v) a certificate executed by an executive officer of Seller, without personal liability, (i)
representing and warranting to Buyer that each of Seller’s representations and warranties in this
Agreement was accurate in all material respects as of the date of this Agreement and is accurate in
all material respects as of the Closing Date as if made on the Closing Date and (ii) including a
certified copy of resolutions of the board of directors of Seller authorizing the execution and
performance by Seller of this Agreement and its obligations hereunder.
(b) Buyer will deliver (or cause to be delivered) to Seller:
(i) the sum of $15,217,988.00 (including amounts payable to Seller pursuant to the Escrow
Agreement) in immediately available funds by wire transfer to an account specified by Seller;
(ii) a legal opinion of Xxxxxxx Law Group, P.C., counsel to Buyer, covering matters customary
for the type of transaction contemplated by the Agreement and which is reasonably satisfactory to
counsel to Seller; and
(iii) a certificate executed by an executive officer of Buyer, without personal liability, (i)
representing and warranting to Seller that each of Buyer’s representations and warranties in this
Agreement was accurate in all material respects as of the date of this Agreement and is accurate in
all material respects as of the Closing Date as if made on the Closing Date and (ii) including a
certified copy of resolutions of the board of directors of Buyer authorizing the execution and
performance by Buyer of this Agreement and its obligations hereunder.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization and Good Standing
(a) Seller is a corporation duly organized, validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania. Seller is a bank holding company duly registered under
the Bank Holding Company Act of 1956, as amended. Seller has the corporate power and authority to
own or lease all of its properties and assets, including RAB, and to carry on its business as it is
now being conducted.
(b) RAB is a bank duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. RAB received a certificate of authority from the Pennsylvania
Department of Banking (the “PDOB”) to operate as a commercial bank, and such certificate
has not been revoked, rescinded, amended, qualified or otherwise adversely limited by the PDOB.
RAB has the corporate power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted.
(c) RAB does not own, either directly or indirectly, any stock or equity interest in any
depository institution (as defined in 12 U.S.C. Section 1813(c)(1)). There are no subsidiaries of
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RAB. The deposits of RAB are insured by the Federal Deposit Insurance Corporation (the
“FDIC”) to the fullest extent permitted by law.
(d) To the knowledge of Seller, the minute books of RAB accurately record, in all material
respects, all material corporate actions of the shareholders and board of directors (including
committees) of RAB, in accordance with the business practices of RAB.
(e) RAB is not in violation of its articles of incorporation or bylaws, as in effect on the
date hereof.
3.2 Authority, No Conflict
Seller has full power and authority to enter into this Agreement and to consummate the
transactions contemplated herein. This Agreement and the other documents or instruments to be
delivered by Seller hereunder have been or will be duly executed and delivered by Seller and are or
will be valid and binding obligations of Seller enforceable against Seller in accordance with their
terms, except as enforcement may be limited by general principles of equity, whether applied in a
court of law or a court of equity, and by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally (including those relating to fraudulent conveyances and
transfers). The execution, delivery and performance of this Agreement by Seller will not conflict
with, or result in, or constitute a breach or default of the terms, conditions or provisions of the
articles of incorporation or bylaws of Seller or any material instrument, agreement, mortgage, deed
of trust, judgment, order, award or decree or other restriction to which Seller is a party or by
which Seller or any of the Shares are bound.
3.3 Title; Capitalization
(a) The authorized capital stock of RAB consists of 10,000,000 shares of Common Stock and no
shares of preferred stock. As of the date of this Agreement, there were 5,062,500 shares of Common
Stock outstanding and no shares of Common Stock held in treasury. As of the date of this
Agreement, to the knowledge of Seller, no shares of Common Stock were reserved for issuance, except
for an aggregate of 1,250,000 shares of Common Stock reserved for possible issuance under the Royal
Asian Bank 2008 Long-Term Incentive Plan. All of the issued and outstanding shares of Common Stock
have been duly authorized and validly issued and are fully paid, nonassessable and free of
preemptive rights. As of the date of this Agreement, to the knowledge of Seller, except as set
forth above and except for 250,000 shares of Common Stock remaining to be issued to Shin under the
Shin Restricted Stock Agreement (after giving effect to the 62,500 shares of Common Stock which are
issued under the Shin Restricted Stock Agreement which vested on November 4, 2008), RAB does not
have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any shares of Common Stock or any other equity securities of RAB or
any securities representing the right to purchase or otherwise receive any shares of RAB capital
stock.
(b) Seller owns, of record and beneficially, all of the Shares. Seller does not have any
rights to subscribe for or purchase any additional shares of Common Stock or any other equity
securities of RAB. At the Closing, (A) the Shares will be transferred to Buyer free and clear of
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all pledges, contractual restrictions on transfer, security interests, liens, claims and
encumbrances of any nature whatsoever and there will not be any outstanding subscriptions, options,
warrants, convertible securities, calls, commitments, agreements, contracts, rights or other
obligations granted by Seller of any nature whatsoever (contingent or otherwise) to purchase or
otherwise acquire from Seller all or any portion of the Shares or any securities convertible into
shares of capital stock of RAB and (B) the Shares will not be the subject of a voting trust, voting
agreement, shareholders’ agreement or other similar arrangement entered into by Seller, or binding
upon Seller or any of the Shares.
3.4 Consents and Approvals
No consents or approvals of, or filings or registrations with, any Governmental Entity are
necessary, and no consents or approvals of any third parties are necessary, in connection with the
execution and delivery of this Agreement by Seller, or, subject to the consents, approvals, filings
and registrations from or with the Governmental Entities referred to in Section 4.4 hereof and
compliance with any conditions contained therein, the consummation by Seller of the Contemplated
Transactions applicable to it.
3.5 Taxes
(a) RAB is a member of the same affiliated group within the meaning of IRC Section 1504(a) of
which Seller is a common parent. Seller has filed or caused to be filed, and will file or cause to
be filed, all material federal, state and local tax returns required to be filed by or with respect
to RAB, either separately or as a result of RAB being a member of an affiliated group of
corporations, on or prior to the Closing Date. RAB has paid or will pay, or made or will make,
provisions for the payment of, all federal, state and local Taxes which are shown on such returns
to be due for the periods covered thereby from RAB (including, without limitation, any obligations
to contribute to the payment of a Tax determined on an affiliated, consolidated, combined or
unitary basis with respect to any affiliated, consolidated, combined or unitary group) to any
applicable taxing authority, on or prior to the Closing Date other than taxes which:
(i) are not delinquent or are being contested in good faith, or
(ii) have not been finally determined.
(b) To the Knowledge of Seller, there are no material disputes pending, or claims asserted in
writing, for Taxes or assessments upon RAB, nor has RAB been requested in writing to give any
currently effective waivers extending the statutory period of limitation applicable to any federal,
state, county or local income tax return for any period.
(c) To the Knowledge of Seller, proper and accurate amounts have been withheld by RAB from its
employees for all prior periods in compliance in all material respects with the Tax withholding
provisions of applicable federal, state and local laws.
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3.6 Legal Proceedings
Seller is not a party to any, and there are no pending or, to the Knowledge of Seller,
threatened Proceedings or governmental inquiries of any nature:
(a) challenging the validity or propriety of any of the Contemplated Transactions; or
(b) which could materially adversely affect the ability of Seller to perform its obligations
under this Agreement.
3.7 Brokers and Finders
Neither Seller, nor any of its officers, directors, employees, independent contractors or
agents, has employed any broker, finder, investment banker or financial advisor, or incurred any
liability for any fees or commissions to any such person, in connection with the Contemplated
Transactions.
3.8 Information to be Supplied
The information supplied by Seller for inclusion in any requisite regulatory application will,
at the time each such document is filed with any Governmental Entity and up to and including the
dates of any required regulatory approvals or consents, as such applications may be amended by
subsequent filings, be accurate in all material respects.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Good Standing
Buyer is a corporation duly organized, validly existing and in good standing under the laws of
the Commonwealth of Pennsylvania. On the Closing Date, Buyer will be a bank holding company duly
registered under the Bank Holding Company Act of 1956, as amended. Buyer has the corporate power
and authority to own or lease all of its properties and assets and to carry on its business as it
is now being conducted.
4.2 Authority, No Conflict
Buyer has full power and authority to enter into this Agreement and to consummate the
transactions contemplated herein. This Agreement and the other documents or instruments to be
delivered by Buyer hereunder have been or will be duly executed and delivered by Buyer and are or
will be valid and binding obligations of Buyer enforceable against Buyer in accordance with their
terms, except as enforcement may be limited by general principles of equity, whether applied in a
court of law or a court of equity, and by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally (including those relating to fraudulent conveyances and
transfers). The execution, delivery and performance of this Agreement by Buyer will not conflict
with, or result in, or constitute a breach or default of the terms, conditions or provisions of the
articles of incorporation or bylaws of Buyer or any material instrument,
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agreement, mortgage, deed of trust, judgment, order, award or decree or other restriction to
which Buyer is a party or by which Buyer is bound.
4.3 Buyer Private Placement
Buyer will conduct the Buyer Private Placement in accordance with all applicable Legal
Requirements. The offering materials to be used in connection with the Buyer Private Placement
will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not misleading. Buyer has no reason to believe
that it will not be able to raise the amount of capital contemplated by Section 6.2 in the Buyer
Private Placement.
4.4 Consents and Approvals
Except for any required approvals of the transactions contemplated by this Agreement by the
PDOB, the FDIC and the Board of Governors of the Federal Reserve System (the “FRB”), and
compliance with any conditions contained therein, no consents or approvals of, or filings or
registrations with, any court, administrative agency or commission or other governmental authority
or instrumentality or self-regulatory organization (each, including the PDOB, FDIC and FRB, a
“Governmental Entity”) or with any other third party are necessary in connection with (A)
the execution and delivery by Buyer of this Agreement and (B) the consummation by Buyer of
transactions contemplated hereby. As of the date of this Agreement, Buyer does not know of any
reason why any required approval of a Governmental Entity will not be obtained on a timely basis
(including without limitation as a result of Buyer’s inability to raise the capital required to
complete the Contemplated Transactions), or will be received with conditions, limitations or
restrictions that would reasonably be expected to adversely impact Buyer’s ability to complete the
Contemplated Transactions. In addition, without limiting the immediately preceding sentence, Buyer
has no reason to believe that any proposed investor in Buyer (as a result of the Buyer’s identity
of the proposed amount of investment) will cause any required approval of a Governmental Entity not
be obtained on a timely basis or to be received with conditions, limitations or restrictions that
would reasonably be expected to adversely impact Buyer’s ability to complete the Contemplated
Transactions.
4.5 Buyer’s Knowledge and Familiarity with the Business and Operations of RAB
BUYER, THROUGH ITS PRESIDENT AND CHIEF EXECUTIVE OFFICER, WHO HAS SERVED AS A DIRECTOR AND AS
PRESIDENT AND CHIEF EXECUTIVE OFFICER OF RAB SINCE ITS ORGANIZATION, FULLY AND COMPLETELY
UNDERSTANDS, AND IS FAMILIAR WITH, THE BUSINESS, OPERATIONS, ASSETS, COMMITMENTS, CONTRACTS,
LIABILITIES (ABSOLUTE, CONTINGENT OR OTHERWISE) AND PROSPECTS OF RAB AND THE RESPECTIVE BOOKS,
RECORDS, FINANCIAL INFORMATION AND DOCUMENTS RELATED TO RAB. BUYER ACKNOWLEDGES THAT BUYER
POSSESSES SUCH INFORMATION AS BUYER DEEMS NECESSARY TO CAUSE BUYER TO REACH AN INFORMED DECISION TO
PURCHASE THE SHARES AND TO OTHERWISE PERFORM ITS OBLIGATIONS PURSUANT TO THE TERMS OF THIS
AGREEMENT. ACCORDINGLY, (i) BUYER IS NOT RELYING UPON ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND
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WHATSOEVER, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, EXCEPT FOR THOSE
SPECIFICALLY SET FORTH IN SECTION 3 OF THIS AGREEMENT AND (ii) BUYER HAS ADVISED SELLER THAT IT IS
NOT NECESSARY AND THAT BUYER DOES NOT INTEND TO UNDERTAKE ANY ADDITIONAL DUE DILIGENCE EXAMINATION
OF RAB.
4.6 Maturity of Certificates of Deposit
Notwithstanding and without limiting the provisions of Section 4.5, Buyer acknowledges that
approximately $47.4 million of certificates of deposit issued by RAB will mature on or prior to
December 31, 2009.
4.7 Legal Proceedings
Buyer is not a party to any, and there are no pending or, to the Knowledge of Buyer,
threatened Proceedings or governmental inquiries of any nature:
(a) challenging the validity or propriety of any of the Contemplated Transactions; or
(b) which could materially adversely affect the ability of Buyer to perform its obligations
under this Agreement.
4.8 Brokers and Finders
Neither Buyer nor any of its officers, directors, employees, independent contractors or
agents, has employed any broker, finder, investment banker or financial advisor, or incurred any
liability for any fees or commissions to any such person, in connection with the Contemplated
Transactions.
4.9 Information to be Supplied
The information supplied by Buyer for inclusion in any requisite regulatory application will,
at the time each such document is filed with any Governmental Entity and up to and including the
dates of any required regulatory approvals or consents, as such applications may be amended by
subsequent filings, be accurate in all material respects.
5. COVENANTS OF SELLER PRIOR TO CLOSING DATE
5.1 Operation of the Business of RAB During Executory Period. Except as otherwise
contemplated or permitted by this Agreement, or at the direction of a Governmental Entity of
competent jurisdiction (which direction Seller shall cause to be promptly sent to Buyer in
accordance with Section 12.5 of this Agreement), during the period from the date of this Agreement
to the Closing Date, Seller shall not cause or permit RAB, without the prior written consent of
Buyer (which consent shall not be unreasonably withheld or delayed) to:
(a) (i) adjust, split, combine or reclassify any capital stock; (ii) set any record or payment
dates for the payment of any dividends or distributions on its capital stock or make, declare or
pay any dividend or make any other distribution on, or, directly or indirectly, sell or
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otherwise dispose of, redeem, purchase or otherwise acquire, any shares of its capital stock
or any securities or obligations convertible into or exchangeable for any shares of its capital
stock or stock appreciation rights or grant any person any right to acquire any shares of its
capital stock; or (iii) issue or commit to issue any additional shares of capital stock, or any
securities convertible into or exercisable for, or any rights, warrants or options to acquire, any
additional shares of capital stock;
(b) enter into any new line of business;
(c) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its assets or
properties to any individual, corporation or other entity, except (i) in the ordinary course of
business consistent with past practice, or (ii) as expressly required by the terms of any contracts
or agreements in force at the date of this Agreement;
(d) acquire or agree to acquire, by merging or consolidating with, or by purchasing an equity
interest in or a portion of the assets of, or by any other means, any business or any corporation,
partnership, association or other business organization or division thereof, other than in
connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt
restructurings in the ordinary course of business consistent with past practices;
(e) (i) increase the compensation or fringe benefits of any present or former director,
officer or employee of RAB, except as may be required pursuant to the terms of any plan or
agreement, except in the case of non-officer employees, merit increases in the ordinary course of
business consistent with past practice; (ii) establish, adopt, enter into, amend or terminate any
employee benefit plan or any plan, agreement, program, policy, trust, fund or other arrangement
that would be a plan if it were in existence as of the date of this Agreement; or (iii) grant any
severance or termination pay (other than pursuant to plans or agreements of RAB in effect on the
date hereof) or enter into or amend any employment, consulting, severance, “change-in-control” or
termination contract or arrangement with, any officer, director, employee, independent contractor,
agent or other person associated with RAB ;
(f) other than expenditures budgeted in RAB’s capital expenditure budget, unplanned capital
expenditures as reasonably determined by RAB for casualty loss and repair and replacement of
damaged property, plant and equipment, or expenditures approved in advance in writing by Shin, make
any capital expenditures in excess of $25,000.00 in the aggregate;
(g) make application for the opening or relocation of any, or open or relocate any, branch
office;
(h) except in the ordinary course of business consistent with past practice, (A) incur any
indebtedness for borrowed money, or (B) guarantee or agree to guarantee, or endorse or assume
responsibility for, the obligations of any person (other than the endorsement of checks and other
negotiable instruments in the normal process of collection);
(i) amend its articles of incorporation, bylaws or similar governing documents;
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(j) make any changes in its accounting methods or method of tax accounting, practices or
policies, except as may be required under GAAP as concurred in by RAB’s independent public
accountants;
(k) make any change in policies in existence on the date of this Agreement with regard to: the
extension of credit, or the establishment of reserves with respect to the possible loss thereon or
the charge off of losses incurred thereon; investments; asset/liability management; or other
material banking policies in any material respect except in the ordinary course of business
consistent with past practice or as may be required by changes in applicable law or regulations, as
may be required by GAAP, or as may be required by a Governmental Entity;
(l) waive or release any rights of material value, or materially modify or amend any material
Contract to which RAB is a party, in each case other than in the ordinary course of business
consistent with past practice;
(m) enter into any futures contract, option, interest rate caps, interest rate floors,
interest rate exchange agreement or other agreement or take any other action for purposes of
hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in
market rates of interest; or
(n) agree to, or make any commitment to, take any of the actions prohibited by this Section
5.1.
5.2 Notification
Between the date of this Agreement and the Closing Date, Seller will promptly notify Buyer in
writing if Seller becomes aware of any fact or condition that causes or constitutes a breach of
Seller’s representations and warranties as of the date of this Agreement, or if the Seller becomes
aware of the occurrence after the date of this Agreement of any fact or condition that would
(except as expressly contemplated by this Agreement) (i) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition or (ii) be reasonably likely to cause a condition
to Closing not to be satisfied or to be materially delayed. Seller shall have fifteen (15) days to
cure any breach after notice to Buyer of any breach unless such breach is not susceptible of cure
within such time period.
5.3 No Negotiation of Sale of RAB
Until such time, if any, as this Agreement is terminated pursuant to Section 10, Seller will
not, and will cause RAB and each of its Representatives not to, directly or indirectly solicit,
initiate, or encourage any inquiries or proposals from, discuss or negotiate with, provide any
non-public information to any Person (other than Buyer) relating to any transaction involving the
sale of substantially all of the business or assets of RAB, or any of the capital stock of RAB, or
any merger, consolidation, business combination, or similar transaction involving RAB.
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5.4 Best Efforts
Between the date of this Agreement and the Closing Date, Seller will use its Best Efforts to
cause its conditions to Closing to be satisfied.
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1 Approvals of Governmental Entities
As promptly as practicable, but in no event more than thirty (30) days after the date of this
Agreement, Buyer will make all filings with Governmental Entities required by applicable Legal
Requirements to consummate the Contemplated Transactions. Subject to the other provisions of this
Agreement, the parties hereto shall cooperate with each other and use Best Efforts to promptly
prepare and file all necessary documentation, to effect all applications, notices, petitions and
filings, and to obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities which are necessary or advisable to
consummate the Contemplated Transactions and to comply with the terms and conditions of all such
permits, consents, approvals and authorizations of all such third parties and Governmental
Entities. Seller and Buyer shall have the right to review in advance, and to the extent
practicable each will consult the other on, in each case subject to applicable laws relating to the
exchange of information, all the information relating to Seller, Buyer (including any proposed
director, officer or equity holder of Buyer) or RAB, as the case may be, that appears in any filing
made with, or written materials submitted to, any third party or any Governmental Entity in
connection with the Contemplated Transactions. In exercising the foregoing right, each of the
parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that
they will consult with each other with respect to the obtaining of all permits, consents, approvals
and authorizations of all third parties or Governmental Entities necessary or advisable to
consummate the Contemplated Transactions and each party will keep the other apprised of the status
of matters relating to consummation of the Contemplated Transactions. Seller and Buyer shall
promptly furnish each other with copies of all written communications received by Seller or Buyer,
as the case may be, from, or delivered by any of the foregoing to, any Governmental Entity in
respect of the Contemplated Transactions. Without limiting the foregoing, Buyer shall immediately
notify Seller of any request by a Governmental Entity for additional information with respect to
any filing, and of any adverse developments, whether communicated orally or in writing by a
Governmental Entity, with respect to a filing.
6.2 Conduct of Buyer Private Placement
Buyer shall use its Best Efforts to raise prior to November 15, 2009 an amount of capital
sufficient to permit Buyer to acquire the Shares and maintain RAB’s status as “well capitalized”
under the regulations of the applicable Governmental Entities following completion of the
Contemplated Transactions or in such greater amount as may be required by any of the applicable
Governmental Entities. Prior to the Closing, Buyer shall periodically at Seller’s request (and in
no event less frequently than twice a month) provide Seller with information relating to the status
of the Buyer Private Placement and the amount of capital raised pursuant to the Buyer Private
Placement.
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6.3 Notification
Between the date of this Agreement and the Closing Date, Buyer will promptly notify Seller in
writing if Buyer becomes aware of any fact or condition that causes or constitutes a breach of the
Buyer’s representations and warranties as of the date of this Agreement, or if the Buyer becomes
aware of the occurrence after the date of this Agreement of any fact or condition that would
(except as expressly contemplated by this Agreement) (i) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition or (ii) be reasonably likely to cause a condition
to Closing not to be satisfied or to be materially delayed. Buyer shall have fifteen (15) days to
cure any breach after notice to Seller of any breach unless such breach is not susceptible of cure
within such time period.
6.4 Best Efforts.
Between the date of this Agreement and the Closing Date, Buyer will use its Best Efforts to
cause its conditions to Closing to be satisfied.
7. CONDITIONS PRECEDENT TO EACH PARTY’S OBLIGATION TO CLOSE
The respective obligations of each party to effect the Contemplated Transactions at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by Seller or Buyer, as applicable, in whole or in part) :
7.1 Regulatory Approvals
All regulatory approvals required to consummate the transactions contemplated hereby shall
have been obtained and shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired or been terminated.
7.2 No Injunctions or Restraints; Illegality
No order, injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition preventing the consummation of the Contemplated Transactions
shall be in effect. No statute, rule, regulation, order, injunction or decree shall have been
enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes
illegal the consummation of the Contemplated Transactions.
7.3 Buyer Private Placement
Buyer shall have (i), on or prior to November 15, 2009, received net proceeds in the Buyer
Private Placement for the purpose of acquiring the Shares on the Closing Date in the amount of at
least $10,000,000 (which receipt shall be evidenced by signed irrevocable subscription agreements
delivered to Seller and immediately available funds in such amount, together with such additional
documents as may be reasonably requested by Seller to evidence such receipt) and delivered to
Seller a written representation of its chief executive officer that Buyer reasonably expects to
raise the remaining funds constituting the Purchase Price to permit Buyer to acquire the Shares on
the Closing Date and (ii), on or prior to December 15, 2009,
12
received net proceeds in the Buyer Private Placement for the purpose of acquiring the Shares
on the Closing Date in the amount of the total Purchase Price (which receipt shall be evidenced by
signed irrevocable subscription agreements delivered to Seller and immediately available funds in
such amount, together with such additional documents as may be reasonably requested by Seller to
evidence such receipt).
7.4 Back Office Operations
Buyer, Seller and Royal Bank America, a wholly-owned subsidiary of Seller (“RBA”),
shall have entered into a mutually acceptable written service agreement pursuant to which Seller or
RBA shall continue to provide to RAB, at no cost to RAB, certain designated back-office operations
and related services for a period not to exceed six months from the Closing Date on the terms and
conditions set forth therein.
8. CONDITIONS PRECEDENT TO SELLER’S OBLIGATION TO CLOSE
Seller’s obligation to sell the Shares and to take the other actions required to be taken by
Seller at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Seller, in whole or in part):
8.1 Accuracy of Representations
The representations and warranties of Buyer set forth in this Agreement shall be true and
correct as of the Closing Date as though made on and as of the Closing Date (except to the extent
such representations and warranties speak as of an earlier date, in which case such representations
and warranties shall be true and correct as of such specified date); and Seller shall have received
a certificate signed on behalf of Buyer by the Chief Executive Officer of Buyer to the foregoing
effect.
8.2 Buyer’s Performance of Obligations
Buyer shall have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date, and Seller shall have received a
certificate signed on behalf of Buyer by the Chief Executive Officer of Buyer to such effect.
8.3 Shin Wavier of Change in Control Payment
Shin shall have waived any rights to receive a change in control payment under his employment
agreement, dated February 22, 2007, with respect to the Contemplated Transactions.
9. CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE
Buyer’s obligation to purchase the Shares and to take the other actions required to be taken
by Purchaser at the Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Buyer, in whole or in part):
13
9.1 Accuracy of Representations
The representations and warranties of Seller set forth in this Agreement shall be true and
correct as of the Closing Date as though made on and as of the Closing Date (except to the extent
such representations and warranties speak as of an earlier date, in which case such representations
and warranties shall be true and correct as of such specified date); and Buyer shall have received
a certificate signed on behalf of Seller by the Chief Executive Officer of Seller to the foregoing
effect.
9.2 Seller’s Performance of Obligations
Seller shall have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date; and Buyer shall have received a
certificate signed on behalf of Seller by the Chief Executive Officer of Seller to such effect.
10. TERMINATION
10.1 Termination Events
This Agreement may by notice be terminated:
(a) by either Seller or Buyer at any time if (i) any Governmental Entity which must grant a
requisite regulatory approval has denied approval of the Contemplated Transactions, requested that
an application submitted for a requisite regulatory approval be withdrawn, or notified or advised
any party that such Governmental Entity will not grant (or intends to rescind or revoke if
previously approved) any requisite regulatory approval with respect to the Contemplated
Transactions, or (ii) any Governmental Entity imposes a condition in connection with approval of
the Contemplated Transactions which, in the good faith judgment of Seller or Buyer, will materially
impair the ability of Buyer to complete the Contemplated Transactions; or (iii) any Governmental
Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or
otherwise prohibiting the consummation of the Contemplated Transactions; provided, however, that
no party shall have the right to terminate this Agreement pursuant to this Section 10.1(a) if the
denial or order referred to above shall be due to the failure of the party seeking to terminate
this Agreement to perform or observe any of its covenants or agreements set forth herein;
(b) by either Buyer or Seller at any time, if a breach of any representation, warranty or
obligation contained in this Agreement has been committed by the other party and such breach has
not been cured as permitted hereby or waived;
(c) (i) by Buyer at any time if any of the conditions to Buyer’s obligation to complete the
Closing specified in Sections 7 or 9 have not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than through the failure of Buyer
to comply with their obligations under this Agreement) and Buyer has not waived such condition on
or before the Closing Date; or (ii) by Seller at any time, if any of the conditions to Seller’s
obligation to complete the Closing specified in Sections 8 or 9 have not been satisfied as of the
Closing Date or if satisfaction of such a condition is or becomes impossible (other than
14
through the failure of Seller to comply with its obligations under this Agreement) and Seller
has not waived such condition on or before the Closing Date;
(d) by the mutual consent of Buyer and Seller at any time;
(e) by either Buyer or Seller on or after December 31, 2009, if the Closing has not occurred
(other than through the failure of any party seeking to terminate this Agreement to comply fully
with its obligations under this Agreement) on or before such date, or such later date as the
parties may agree;
(f) by Seller on or after November 16, 2009, if Seller does not receive from Buyer evidence
satisfactory to Seller of the satisfaction of the condition set forth in clause (i) Section 7.3
(which satisfactory evidence shall include (1) signed irrevocable subscription agreements for at
least the amount set forth in clause (i) of Section 7.3 of this Agreement and (2) immediately
available funds in an amount at least equal to the amount set forth in clause (i) of Section 7.3 of
this Agreement, on or before November 15, 2009 (or such later date as may be determined in Seller’s
sole discretion); or
(g) by Seller on or after December 16, 2009, if Seller does not receive from Buyer evidence
satisfactory to Seller of the satisfaction of the condition set forth in clause (ii) Section 7.3
(which satisfactory evidence shall include (1) signed irrevocable subscription agreements for at
least the amount set forth in clause (ii) of Section 7.3 of this Agreement and (2) immediately
available funds in an amount at least equal to the amount set forth in clause (ii) of Section 7.3
of this Agreement, on or before December 15, 2009 (or such later date as may be determined in
Seller’s sole discretion)
10.2 Effect of Termination
(a) In the event of any termination of this Agreement as provided in Section 10.1, this
Agreement shall forthwith become void and have no effect, and none of Seller, Buyer, or any of
their respective Affiliates shall have any liability of any nature whatsoever hereunder, or in
connection with the transactions contemplated hereby, except that (i) this Section 10.2 and
Sections 11.2, 12.2, 12.3 and 12.4 shall survive any termination of this Agreement and (ii),
notwithstanding anything to the contrary contained in this Agreement, neither Seller nor Buyer
shall be relieved or released from any liabilities or damages arising out of its willful breach of
any provision of this Agreement. For the avoidance of doubt, the fact that the obligation of Buyer
to receive net proceeds in the Buyer Private Placement in the amount referenced in Section 7.3 may
be deemed to be a mutual condition precedent to the Closing shall in no way affect Seller’s right
to terminate this Agreement pursuant to Section 10.1(f).
(b) Notwithstanding anything contained herein to the contrary, Buyer shall pay Seller, by wire
transfer of immediately available funds to an account designated by Seller, $250,000.00 in cash
(the “Buyer Termination Fee”) held pursuant to the Escrow Agreement on or before the fifth
(5th) Business Day after the date of termination if this Agreement is terminated (i) by Seller
pursuant to Section 10.1(b) as a result of a breach by Buyer of any representation, warranty or
obligation of Buyer or (ii) by Seller pursuant to Sections 10.1(f) or 10.1(g). By way of
clarification, if either (x) the Agreement is terminated under Section 10.1(a) after November 15,
15
2009 and Buyer shall not have satisfied the condition set forth in clause (i) of Section 7.3
by November 15, 2009 or (y) the Agreement is terminated under Section 10.1(a) after December 15,
2009 and Buyer shall not have satisfied the condition set forth in clause (ii) of Section 7.3 by
December 15, 2009, the Buyer Termination Fee shall be payable to Seller. The parties acknowledge
and agree that the Buyer Termination Fee shall be payable directly to Seller pursuant to the Escrow
Agreement.
(c) Seller agrees that payment of either the Buyer Termination Fee shall be the sole and
exclusive remedy of Seller for any termination of this Agreement pursuant to Section 10.2(b) in the
absence of a willful breach of this Agreement by Buyer.
11. POST-CLOSING COVENANTS
11.1 Cooperation; Post-Closing Access to Information.
(a) The parties will cooperate with and provide such further assurances to each other as are
reasonably necessary or requested to perfect (of record or otherwise) and effectively transfer
title to the Shares to Buyer.
(b) Buyer shall preserve until at least the fifth (5th) anniversary of the Closing Date any
records relating to the business of RAB as it is required to maintain by law. After the Closing
Date, where there is a legitimate business reason or purpose, Buyer shall cause RAB to provide
Seller access, upon reasonable written notice specifying the reason therefor, during normal
business hours, to (i) the officers and employees of RAB and (ii) to any books of account or
records of RAB, but, in each case, only to the extent relating to the assets, liabilities or
business of RAB prior to the Closing Date, and Seller and its representatives shall have the right
to make copies of such books of account and records at their sole cost and expense; provided,
however, that the foregoing right of access shall not be exercisable in such a manner as to
unreasonably interfere with the business and operations of RAB and any information obtained by
Seller in accordance with this Section 11.1(b) shall be subject to the provisions of Section
11.2(a) of this Agreement.
11.2 Treatment of Confidential Information
(a) Seller acknowledges that it has or may have had in the past, and in the future may have,
access to confidential information of RAB and/or Buyer, including customer lists, files, records,
products, technical information, sales activities, procedures, promotion, pricing techniques,
business plans, dealer lists and credit and financial data concerning customers. Seller agrees
that it will keep confidential all such confidential information and, except with the specific
prior written consent of Buyer, will not disclose such confidential information to any person
except: (i) Representatives of Buyer or (ii) its own Representatives, provided that such
Representatives acknowledge the confidentiality provisions of this Section. Confidential
information shall not include (A) information that becomes known to the public generally through no
fault of Seller, (B) information required to be disclosed by the terms of this Agreement or by law
or by inquiry from or Order of any Governmental Entity under color of law, provided that prior to
disclosing any information pursuant to this clause (B), Seller shall, if possible, give prior
written notice thereof to Buyer and provide Buyer with the opportunity to
16
contest such disclosure, or (C) such information that the disclosing party reasonably believes
the disclosure of which is required in connection with the defense of a lawsuit against Seller.
Because of the difficulty of measuring the economic loss that may be incurred as a result of the
breach of the covenants above, and because of the immediate and irreparable damage that would be
caused for which the injured party would have no other adequate remedy, Seller agrees that Buyer
and/or RAB may enforce the provisions of this Section by injunctions and restraining orders against
it. Nothing herein shall be construed as prohibiting Buyer from pursuing any other remedy
available at law or in equity for such breach or threatened breach, including the recovery of
damages, subject to the limitations of Article 10.
(b) Buyer acknowledges that it has had access to confidential information of RAB and its
customers and Seller and agrees that, in the event that this Agreement is terminated pursuant to
Section 10 for any reason, Buyer will, and will cause its affiliates to, keep confidential all such
confidential information and, except with specific prior written consent of Seller, will not
disclose such confidential information to any Person or use such information for the benefit of any
Person. Confidential information shall not include (A) such information that becomes known to the
public generally through no fault of Buyer, (B) information required to be disclosed by the terms
of this Agreement or by law or by inquiry from or Order of any Governmental Entity under color of
law, provided that prior to disclosing any information pursuant to this clause (B), Buyer shall, if
possible, give prior written notice thereof to Seller and provide Seller with the opportunity to
contest such disclosure, or (C) such information that Buyer reasonably believes the disclosure of
which is required in connection with the defense of a lawsuit against Buyer. Because of the
difficulty of measuring the economic loss that may be incurred as a result of the breach of the
covenants above, and because of the immediate and irreparable damage that would be caused for which
the injured party would have no other adequate remedy, Buyer agrees that Seller and/or RAB may
enforce the provisions of this Section by injunctions and restraining orders against it. Nothing
herein shall be construed as prohibiting Seller from pursuing any other remedy available at law or
in equity for such breach or threatened breach, including the recovery of damages, subject to the
limitations of Article 10.
(c) The obligations of the parties under this Section shall survive the termination of this
Agreement.
11.3 Tax Returns
Buyer agrees not to amend or otherwise change any tax return for any period ending prior to
the Closing Date, or otherwise make any election or similar accounting method change that would
have the effect of retroactively increasing any tax liability of Seller.
11.4 Use of Name
Seller and its Affiliates acknowledge that RAB shall have the right to continue using the name
“Royal Asian Bank” following the Closing Date.
17
12. GENERAL PROVISIONS
12.1 Survival of Representations, Warranties and Agreements
All representations, warranties, covenants, and obligations in or delivered in connection with
this Agreement and the other Transaction Documents will survive the Closing, provided that all
representations and warranties of the parties shall expire twelve (12) months after the Closing
Date.
12.2 Expenses
Except as otherwise expressly provided in this Agreement, each party to this Agreement will
bear its respective expenses incurred in connection with the preparation, execution, and
performance of this Agreement and the Contemplated Transactions, including all fees and expenses of
its Representatives. In the event of termination of this Agreement, the obligation of each party
to pay its own expenses will be subject to any rights of such party expressly provided herein
arising from a breach of this Agreement by another party.
12.3 Public Announcements; Filings
Any public announcement or similar publicity with respect to this Agreement or the
Contemplated Transactions will be issued at such time, in such manner and such form and content as
Seller and Buyer shall mutually determine, provided that nothing contained herein shall prohibit
either party, following notification to the other party, from making any disclosure which its
counsel deems necessary under applicable law. Seller and Buyer will consult with each other
concerning the means by which RAB’s employees, customers, and suppliers and others having dealings
with RAB will be informed of the Contemplated Transactions.
12.4 Confidentiality
Between the date of this Agreement and the Closing Date, Buyer and Seller will maintain in
confidence, and will cause their respective directors, officers, employees, agents, and advisors to
maintain in confidence any written, oral, or other information obtained in confidence from another
party or from RAB in connection with this Agreement or the Contemplated Transactions, unless (i)
such information is already known to such party or to others not bound by a duty of confidentiality
or such information becomes publicly available through no fault of such party, (ii) the use of such
information is necessary or appropriate in making any filing or obtaining any Consent or approval
required for the consummation of the Contemplated Transactions, or (iii) the furnishing or use of
such information is required by or necessary or appropriate in connection with a request from a
Governmental Entity or in connection with legal proceedings.
12.5 Notices
All notices, Consents, waivers, and other communications under this Agreement must be in
writing and will be deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by telecopier (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in
18
each case to the appropriate addresses and telecopier numbers set forth below (or to such
other addresses and telecopier numbers as a party may designate by notice to the other parties):
Seller:
Royal Bancshares of Pennsylvania, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chairman
Facsimile No.: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chairman
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx
Xxxxxxx & Xxx, P.C.
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Xxxxxxx & Xxx, P.C.
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Buyer:
Royal Asian Bancshares, Inc.
c/o Waldman Law Group, P.C.
0 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx, Esquire, Counsel
Facsimile No.: (000) 000-0000
c/o Waldman Law Group, P.C.
0 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx, Esquire, Counsel
Facsimile No.: (000) 000-0000
With a copy to:
Xxx X. Xxxxxxx
Xxxxxxx Law Group, P.C.
0 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Xxxxxxx Law Group, P.C.
0 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
12.6 Further Assurances
The parties agree (a) to furnish upon request to each other such further information, (b) to
execute and deliver to each other such other documents, and (c) to do such other acts and things,
all as the other party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
19
12.7 Waiver
Subject to the limits set forth herein, (a) the rights and remedies of the parties to this
Agreement are cumulative and not alternative, (b) neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the documents referred to in this
Agreement will operate as a waiver of such right, power, or privilege, and, no single or partial
exercise of any such right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum
extent permitted by applicable law, (x) no claim or right arising out of this Agreement or the
documents referred to in this Agreement can be discharged by one party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the other party; (y) no
waiver that may be given by a party will be applicable except in the specific instance for which it
is given; and (z) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the documents referred to in this
Agreement.
12.8 Entire Agreement and Modification
This Agreement supersedes all prior oral and written communications, information, disclosures,
bid documents, and agreements between the parties with respect to its subject matter (including
memoranda, draft term sheets, letters of intent, and other correspondence relating thereto) and
constitutes (along with the Transaction Documents) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This Agreement may not be
amended except by a written agreement executed by the party to be charged with the amendment.
12.9 [Intentionally Omitted.]
12.10 Assignments, Successors, and No Third-Party Rights
Neither party may assign any of its rights under this Agreement without the prior consent of
the other parties. Subject to the preceding sentence, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the heirs, personal representatives, successors and
permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement (or their heirs, personal
representatives, successors and permitted assigns) any legal or equitable right, remedy, or claim
under or with respect to this Agreement or any provision of this Agreement. This Agreement and all
of its provisions and conditions are for the sole and exclusive benefit of the parties to this
Agreement and their heirs, personal representatives, successors and assigns.
12.11 Severability
If any provision of this Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
20
12.12 Section Headings, Construction
The headings of Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to “Section” or “Sections” refer to the
corresponding Section or Sections of this Agreement. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. Unless otherwise expressly
provided, the word “including” does not limit the preceding words or terms.
12.13 Time of Essence
With regard to all dates and time periods set forth or referred to in this Agreement, time is
of the essence.
12.14 Governing Law
This Agreement will be governed by the laws of the Commonwealth of Pennsylvania without regard
to conflicts of laws principles.
12.15 Counterparts
This Agreement may be executed in one or more counterparts, each of which will be deemed to be
an original copy of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
21
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
first written above.
ROYAL BANCSHARES OF PENNSYLVANIA, INC. |
||||
By: | /s/ Xxxxx X. XxXxxxxxx | |||
Name: | Xxxxx X. XxXxxxxxx | |||
Title: | President and COO | |||
ROYAL ASIAN BANCSHARES, INC. |
||||
By: | Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | President and CEO | |||
[Signature Page to Stock Purchase Agreement]
Appendix A
“Affiliate”—an affiliate of, or person affiliated with, a specified Person, is a Person that
directly, or indirectly through one or more intermediaries, controls or is controlled by, or is
under common control with, the Person specified.
“Best Efforts”—the efforts that a prudent and commercially reasonable Person desirous of
achieving a result would use in similar circumstances to ensure that such result is achieved as
expeditiously as possible; provided, however, that an obligation to use Best Efforts under
this Agreement does not require the Person subject to that obligation to take actions that would
result in a material adverse effect on the benefits to such Person of this Agreement and the
Contemplated Transactions, or would otherwise cause a material adverse effect on such Person.
“Buyer”—as defined in the first paragraph of this Agreement.
“Buyer Private Placement”—as defined in the Recitals of this Agreement.
“Buyer Termination Fee”—as defined in Section 10.2(b).
“Closing”—as defined in Section 2.2.
“Closing Certificates”—the certificates delivered at Closing pursuant to this Agreement.
“Closing Date”—the date and time as of which the Closing actually takes place.
“Common Stock”—as defined in the Recitals of this Agreement.
“Consent”—any approval, consent, ratification, waiver, or other authorization (including any
Governmental Authorization).
“Contemplated Transactions”—all of the transactions contemplated by this Agreement,
including:
(a) the sale of the Shares by Seller to Buyer;
(b) the execution and delivery of the Transaction Documents.
“Contract”—any agreement, contract, obligation, promise, or undertaking (whether written or
oral) for the breach of which the law gives a remedy.
“Encumbrance”—any charge, claim, community property interest, condition, equitable interest,
lien, option, pledge, security interest, right of first refusal, or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or exercise of any other
attribute of ownership.
“Escrow Agreement”—as defined in the Recitals of this Agreement.
“FDIC”—as defined in Section 3.1(c).
A-1
“FRB”—as defined in Section 4.4.
“Governmental Authorization”—any approval, consent, license, permit, waiver, or other
authorization issued, granted, given, or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement.
“Governmental Entity”—as defined in Section 4.4, plus any:
(a) federal, state, local, municipal or other government within the United States; or
(b) body exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power of any nature within the United
States.
“Intellectual Property Rights” – as defined in Section 3.9.
“IRC” – the Internal Revenue Code of 1986, as amended, or any successor law, and regulations
issued by the IRS pursuant to the Internal Revenue Code of 1986, as amended, or any successor law.
“IRS” – the United States Internal Revenue Service or any successor agency, and, to the
extent relevant, the United States Department of the Treasury.
“Knowledge”—an individual will be deemed to have “Knowledge” of a particular fact or other
matter if such individual is actually aware of such fact or other matter. A Person (other than an
individual) will be deemed to have “Knowledge” of a particular fact or other matter if any
individual who is serving, or who has at any time served, as a director, senior executive, officer,
partner, executor, or trustee of such Person (or in any similar capacity) has, or at any time had,
actual knowledge of such fact or other matter.
“Legal Requirement”—any federal, state, local, municipal, or other administrative order,
constitution, law, ordinance, principle of common law, regulation or statute of the United States
or its Governmental Entities.
“Order”—any award, decision, injunction, judgment, order, ruling, subpoena, or verdict
entered, issued, made, or rendered by any court, administrative agency, or other Governmental Body
or by any arbitrator.
“Ordinary Course of Business”—an action taken by a Person will be deemed to have been taken
in the “Ordinary Course of Business” unless:
(a) such action is required to be authorized by the board of directors of such Person (or by
any Person or group of Persons exercising similar authority) and is required to be specifically
authorized by the parent company (if any) of such Person; or
(b) (i) such action is materially inconsistent with the past practices of such Person and is
not taken in the normal day-to-day operations of such Person; and
A-2
(ii) such action is not similar in nature and magnitude to actions customarily taken, without
any authorization by the board of directors (or by any Person or group of Persons exercising
similar authority), in the normal day-to-day operations of other Persons that are in the same line
of business as such Person.
“PDOB”—as defined in Section 3.1(b).
“Person”—any individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust, association,
organization, labor union, or other entity or Governmental Body.
“Proceeding”—any action, arbitration, audit, hearing, investigation, litigation, or suit
(whether civil, criminal, administrative, investigative, or informal) commenced, brought,
conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.
“Purchase Price” —as defined in Section 2.1.
“RAB” —as defined in the Recitals of this Agreement.
“RBA” —as defined in Section 7.4.
“Representative”—with respect to a particular Person, any director, officer, employee, agent,
consultant, advisor, or other representative of such Person, including legal counsel, accountants,
and financial advisors.
“Seller”—as defined in the first paragraph of this Agreement.
“Shares”—as defined in the Recitals of this Agreement.
“Shin”—as defined in the Recitals of this Agreement.
“Shin Restricted Stock Agreement” – as defined in the Recitals of this Agreement.
“Tax” (or, collectively, “Taxes”) – (i) any federal, state, local or foreign net income,
gross income, gross receipts, windfall profit, severance, property, production, sales, use,
license, excise, franchise, employment, payroll, withholding, alternative or add-on minimum, ad
valorem, value-added, transfer, stamp, or environmental tax (including taxes under IRC Section
59A), or any other tax, custom, duty, governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or penalty, addition to tax or additional amount
imposed by any governmental authority; and (ii) any liability of RAB for the payment of amounts
with respect to payments of a type described in clause (i) as a result of being a member of an
affiliated, consolidated, combined or unitary group, or as a result of any obligation of RAB under
any Tax indemnity agreement.
“Threatened”—a claim, Proceeding, dispute, action, or other matter will be deemed to have
been “Threatened” if any demand or statement has been made (orally or in writing) or any notice has
been given (orally or in writing), or if any other event has occurred or any other circumstances
exist, that would lead a prudent Person to conclude that such a claim, Proceeding,
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dispute, action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
“Transaction Documents”—this Agreement, the Closing Certificates executed by Seller and Buyer
with specific reference to this Agreement, and any other documents, instruments, or certificates
signed by the parties to effect the Contemplated Transactions.
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