THIRD AMENDMENT TO STOCK PURCHASE AGREEMENT
This Third Amendment to Stock Purchase Agreement (the "Amendment") is
entered into effective December 7, 2000 by and between United Financial
Holdings, Inc. ("Holding Company") with First Security Bank ("First Security")
and all of the Shareholders of First Security ("Stockholders")
BACKGROUND
UFHI and FSB entered into that certain Stock Purchase Agreement (the
"Stock Purchase Agreement") dated September 22, 2000, pursuant to which UFHI
will acquire all of the issued and outstanding capital stock of FSB. The
parties amended the Stock Purchase Agreement pursuant to the terms of that
certain First Amendment to Stock Purchase Agreement dated October 16, 2000 and
that certain Second Amendment to the Stock Purchase Agreement dated November 20,
2000 (collectively the "Purchase Amendments"). The parties desire to further
amend the Stock Purchase Agreement and Purchase Amendments as stated in this
Amendment.
Now, therefore, in consideration of the foregoing, and for other good
and valuable consideration, including but not limited to the consideration set
forth in the Stock Purchase Agreement, the parties hereby acknowledge and agree
as follows:
TERMS
1. Section II(A): Right of Examination. Section II(A), Right of
Examination, of the Stock Purchase Agreement, permits UFHI to conduct a due
diligence investigation of FSB for a period of forty-five (45) days (the "Due
Diligence Period") f rom and after the date of the Stock Purchase Agreement. The
Purchase Amendments extended the Due Diligence Period until December 8, 2000.
The parties hereby acknowledge and agree that the Due Diligence Period has
expired and that the pre-purchase due diligence discussed in Section II of the
Stock Purchase Agreement has been completed to the satisfaction of UFHI.
2. Section XXIV: Counterparts. Section XXIV, Counterparts, of the Stock
Purchase Agreement states that the Stockholders are required to execute the
Stock Purchase Agreement on or before October 15, 2000. The parties hereby
Agree to extend the time period for obtaining Stockholder signatures on the
Stock Purchase Agreement, as amended, until the Closing Date specified in the
Stock Purchase Agreement.
3. No Other Modification. Except as specifically set forth in this
Amendment, there shall be no other modification of the Stock Purchase Agreement
or the Purchase Amendments unless otherwise mutually agreed in writing by the
parties.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
FIRST SECURITY BANK
By: __/s/D.B. Briggs________
UNITED FINANCIAL HOLDINGS, INC.
By: __/s/Xxxx X. Savage_____
[Signatures Continued Next Page]
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
[Signatures in Counterparts Continued]
EACH OF THE STOCKHOLDERS, BY HIS, HER OR ITS SIGNATURE ACKNOWLEDGES
RECEIPT OF, REVIEW OF, AND AGREEMENT TO, THE STOCK PURCHASE AGREEMENT AND THE
AMENDMENTS, INCLUDING THE THIRD AMENDMENT; THAT HE, SHE OR IT AGREES TO BE BOUND
BY THE COVENANTS, TERMS, REPRESENTATIONS, WARRANTIES AND CONDITIONS THEREOF;
THAT HE, SHE OR IT IS AN "ACCREDITED INVESTOR" AS DEFINED IN SECTION X OF THAT
AGREEMENT AS AMENDED; THAT HE, SHE OR IT HAS RECEIVED AND REVIEWED THE "COMPANY
INFORMATION" FURNISHED UNDER THE AGREEMENT AND THAT HE, SHE OR IT HAS RECEIVED
ALL OF THE INFORMATION DESIRED.
Number of First Amount of cash to be
Security shares received by
owned by Stockholder:
SIGNATURES OF STOCKHOLDERS:
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
Exhibit A - Stockholders
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
EXHIBIT C
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made and entered into this ___
day of ____________, 200_, by and among United Financial Holdings, Inc., a
Florida corporation ("Holding Company"), ____________________ (the "Escrow
Agent"), and _______________________________ ("Stockholder").
BACKGROUND
Pursuant to the Stock Purchase Agreement dated as of September 22,
2000, as amended, (the "Agreement"), between United Financial Holdings, Inc.
("Holding Company"), First Security Bank ("First Security") and its Stockholders
("Stockholders") First Security was acquired by Holding Company. Under the
Agreement, Cash Consideration and Preferred Shares have been exchanged or paid
by the Holding Company for all of the issued and outstanding shares of First
Security. The Agreement contains certain indemnification provisions for the
benefit of the Holding Company. As security for the performance of such
indemnification provisions, the Agreement provides for the execution and
delivery of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, and of other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. TERMS. All terms defined in the Agreement shall have the same
meanings when used herein.
2. DELIVERY OF PREFERRED SHARES AND CASH CONSIDERATION TO ESCROW
AGENT.
(a) Stockholder hereby transfers to the Escrow Agent [________
shares of Holding Company Preferred Stock, accompanied by an
irrevocable stock power endorsed in blank] and [$_______ Cash
Consideration], which shall be used by the Escrow Agent to create a
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
fund (the "Escrow Fund"), subject to the terms and conditions of this
Agreement.
(b) In the event of any stock dividend, stock split into a larger
number of shares, stock combination into a smaller number of shares
with respect to the Preferred Shares or any Common Shares held in the
Escrow Fund (collectively the "Shares"), in each case whether by
reclassification of Shares, recapitalization or otherwise, which
becomes effective while Shares are held in the Escrow Fund, the
additional Shares issued shall be added to the Escrow Fund and shall
be subject to the terms and conditions of this Agreement as if such
shares were initially delivered at the Closing. The Escrow Fund shall
also include any Common Shares issued upon any conversion of any
Preferred Shares held in the Escrow Fund, any dividend paid with
respect to any of the Shares, and any security or other property
issued, paid or distributed as an addition to, in substitution of, or
in exchange for any of the Shares, and all proceeds.
3. ESCROW FUND INCOME. The Escrow Agent shall invest all Profits (as
hereinafter defined) in marketable obligations issued or guaranteed by the
United States of America, as the Escrow Agent may select. All net profits
resulting from, or interest or income produced by investments of, the
Escrow Fund, including cash dividends on the Shares (the "Profits"), shall
become part of the Escrow Fund and shall be distributed pursuant to the
terms of this Agreement.
4. INDEMNIFICATION CLAIMS. Upon determination by Holding Company that
it has a claim for indemnification under the Agreement, Holding Company
shall notify the Stockholder in writing (the "Indemnification Notice") as
to the amount of the claim and shall deliver a copy of the Indemnification
Notice to the Escrow Agent, and the following shall apply:
(i) Fifteen (15) days after the date of receipt of the
Indemnification Notice by the Escrow Agent, the Escrow Agent shall pay
to Holding Company from the Escrow Fund the amount of the claim stated
in the Indemnification Notice, unless prior to the expiration of that
fifteen (15) day period the Escrow Agent receives written notice (the
"Dispute Notice") from the Stockholder stating that the amount of the
claim is being contested.
(ii) If a Dispute Notice is delivered to the Escrow Agent prior
to the expiration of that fifteen (15) day period, the Escrow Agent
shall pay to Holding Company from the Escrow Fund the amount of the
claim stated in the Indemnification Notice fifteen (15) days after the
date of receipt of the Dispute Notice by the Escrow Agent, unless (a)
payment by the Escrow Agent is restrained or enjoined by a court of
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
competent jurisdiction, or (a) prior to the expiration of that fifteen
(15) day period the Escrow Agent is directed to pay a different amount
to the Holding Company pursuant to a written notice received by the
Escrow Agent from Holding Company and the Stockholder.
(iii) The Escrow Agent shall pay to Holding Company from the
Escrow Fund such amount of amounts as shall be directed to be paid in
any final order, decree or judgment (a "Final Decree") received by the
Escrow Agent from a court of competent jurisdiction.
5. PAYMENT FOR CLAIMS. All claims of Holding Company against the
Escrow Fund shall be paid pro rata out of shares of [Shares] and [Cash]
held in the Escrow Fund. Shares shall be valued based upon the most recent
trading price of any of Holding Company's registered and outstanding common
shares, and in the case of Preferred Shares, using the conversion ratio
then applicable.
6. DISTRIBUTION AND TERMINATION.
(a) FUND DISTRIBUTION.
(i) Within fifteen (15) days following _________________
2001, Holding Company shall deliver to the Stockholder and the
Escrow Agent a written report of all claims for indemnification
under the Agreement which it has as of such date (whether or not
Holding Company has previously provided an Indemnification Notice
with respect to any such claim) (the "Distribution Report"). The
Distribution Report shall constitute an Indemnification Notice
for the purposes of Section 4 of this Agreement.
(ii) As soon as practicable after _______, 2001, (the
"Distribution Date") and subject to the other provisions of this
Section 6, the Escrow Agent shall distribute the Escrow Fund not
used to satisfy claims, as provided below, to the Stockholder.
(iii) Notwithstanding the above, however, if any claims for
indemnification under the Agreement (of which the Stockholder and
the Escrow Agent have received an Indemnification Notice on or
before the Distribution Date or which were identified in the
Distribution Report) remain pending on the Distribution Date, and
the amount reflected in either such notice has not been paid to
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
Holding Company, then the Escrow Agent shall withhold in the
Escrow Fund an amount equal to such pending claims.
(iv) Subject to Section 7 hereof, all amounts in the Escrow
Fund on the Distribution Date in excess of such pending claims
shall be immediately distributed to the Stockholder.
(v) For purposes of determining the number of Shares to be
delivered to the Stockholder or retained in the Escrow Fund
following the Distribution Date, all Shares held in the Escrow
Fund shall be valued as provided in Section 5.
(b) WITHHELD ASSETS. Any assets withheld pursuant to Section 7(a)
shall be retained by the Escrow Agent in the Escrow Fund until (i)
fifteen (15) days shall have expired since Holding Company delivered
to the Escrow Agent and the Stockholder a copy of an Indemnification
Notice or the Distribution Report and the Escrow Agent shall not have
received a Dispute Notice within such time from the Stockholder, at
which time the Escrow Agent shall pay Holding Company the amount of
such claim, (ii) the Escrow Agent receives written direction from
Holding Company and the Stockholder directing the Escrow Agent to
disburse assets, in which case disbursement shall be made in
accordance with such direction, (iii) the Escrow Agent receives a
written notice from Holding Company and Stockholder directing that any
pending claim, or any portion thereof, be paid, in which case payment
of such pending claim or portion thereof shall be made in accordance
with such notice, or (iv) the Escrow Agent receives a Final Decree
directing that a pending claim, or any portion thereof, be paid, in
which case payment of such pending claim or portion thereof shall be
made in accordance with such Final Decree. At such time as any claim
pending on the Distribution Date is no longer pending, the Escrow
Agent shall distribute to the Stockholder, any balance of the assets
withheld in respect of that claim remaining after disposition of that
claim.
(c) TERMINATION. When the entire Escrow Fund has been distributed
in accordance with Section 4 and/or this Section 6, this Agreement
shall terminate.
(d) DISTRIBUTION OF SHARES. In connection with any distribution
of Shares under this Section 6, the Escrow Agent shall forward the
existing stock certificate to the transfer agent with instructions
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
that such certificate be canceled in exchange for new stock
certificates issued in the names of the Stockholder, Holding Company
and the Escrow Agent, as the case may be, and in connection with any
distribution of Shares to Stockholder, Holding Company hereby agrees
that it will direct the transfer agent to so issue the new
certificates and deliver such certificates to the Escrow Agent for
redelivery to the Stockholder.
7. ESCROW AGENT.
(a) ESCROW AGENT OBLIGATIONS. The obligations and duties of the
Escrow Agent are confined to those specifically enumerated in this
Agreement. The Escrow Agent shall not be subject to, nor be under any
obligation to ascertain or construe the terms and conditions of any
other instrument, whether or not now or hereafter deposited with or
delivered to the Escrow Agent or referred to in this Agreement, nor
shall the Escrow Agent be obliged to inquire as to the identity,
authority, or rights of the person or persons executing or delivering
the same.
(b) ESCROW AGENT LIABILITY. The Escrow Agent shall not be
personally liable for any act that it may do or omit to do hereunder
in good faith and in the exercise of its own best judgment. Any act
done or omitted by the Escrow Agent in the absence of gross negligence
or willful misconduct shall be deemed conclusively to have been
performed or omitted in good faith by the Escrow Agent. The Escrow
Agent shall not be held liable for any losses that may occur as the
result of the investment or reinvestment of the Escrow Fund.
(c) CONFLICTS. If any dispute should arise with respect to the
payment and/or ownership or right of possession of the Escrow Fund,
the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of the Escrow
Fund until such dispute shall have been settled either by mutual
written agreement by the parties concerned or by the final order,
decree or judgment of a court of competent jurisdiction in the United
States of America (the time for appeal having expired with no appeal
having been taken) in a proceeding to which the Stockholder and
Holding Company are parties, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings; or the
Escrow Agent, at its option, may deposit the Escrow Fund in the
registry of a court of competent jurisdiction in a proceeding to which
the Stockholder and Holding Company are parties (or their respective
successors or assigns). Upon so depositing such funds and filing its
complaint and interpleader, the Escrow Agent shall be completely
discharged and released from further liability hereunder with respect
to that portion of the Escrow Fund so deposited. Holding Company shall
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
not seek to disqualify Escrow Agent from representation of Stockholder
in connection with any disputes involving Holding Company and the
Stockholder on the basis that Escrow Agent has a conflict of interest
due to its representation of the Stockholder and its role hereunder as
the Escrow Agent.
(d) INDEMNIFICATION OF ESCROW AGENT. Subject to the provisions of
Section 7(b) hereof, Holding Company and Stockholder jointly agree to
indemnify and hold harmless the Escrow Agent from and against all
costs, damages, judgments, attorney's fees (whether such attorneys
shall be regularly retained or specially employed), expenses,
obligations, and liabilities of every kind and nature which the Escrow
Agent may incur, sustain, or be required to pay in connection with or
arising out of this Agreement, except for any of the foregoing arising
out of the gross negligence or willful misconduct of the Escrow Agent.
(e) ESCROW AGENT'S CONDUCT; FEES. In performing its duties
hereunder, the Escrow Agent may rely on statements furnished to it by
an officer of Holding Company or by the Stockholder, or on any other
evidence deemed by the Escrow Agent to be reliable. The Escrow Agent
shall be entitled to be reimbursed 50% by Holding Company and 50% by
Stockholder for any reasonable expenses incurred by the Escrow Agent
when performing its obligations hereunder in connection with any
litigation or other court proceedings or any disputes between the
parties relating thereto.
(f) RESIGNATION AND REMOVAL. The Escrow Agent may resign and be
discharged from its duties hereunder at any time by giving at least
twenty (20) days written notice of such resignation to the Stockholder
and Holding Company, specifying a date upon which such resignation
shall take effect; provided however, that the Escrow Agent shall
continue to serve until a successor approved by Holding Company and
Stockholder accepts the Escrow Fund. Upon receipt of such written
notice, a successor Escrow Agent shall be appointed by the Stockholder
and Holding Company. If an instrument of acceptance by a successor
escrow agent shall not have been delivered to the Escrow Agent within
thirty (30) days after the giving of such notice of resignation, the
resigning Escrow Agent may at the expense of the Stockholder and
Holding Company petition any court of competent jurisdiction of the
appointment of a successor escrow agent. The Stockholder and Holding
Company, acting jointly, may at any time substitute a new Escrow Agent
by giving ten (10) days notice thereof to the current Escrow Agent
then acting.
8. MISCELLANEOUS.
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
(a) VOTING. Stockholder shall have the exclusive right to
exercise his or her voting rights in its sole discretion with respect
to the Shares held in the Escrow Fund, and the Escrow Agent shall
cause the Shares held in the Escrow Fund to be voted in the manner as
directed by Stockholder. The Escrow Agent shall not vote any Shares as
to which the Escrow Agent receives no direction as to voting.
(b) SUCCESSORS. This Agreement shall be binding on and inure to
the benefit of the Stockholder, Holding Company and Escrow Agent and
their respective successors and permitted assigns.
(c) NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given upon the earlier of delivery
thereof if by hand or upon receipt if sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or on the
second next business day after deposit if sent by a recognized
overnight delivery service or upon transmission if sent by telecopy or
delivery service or upon transmission if sent by telecopy or facsimile
transmission (with request of assurance of receipt in a manner
customary for communication of such type) to the addresses specified
for each party in the Agreement and to the Escrow Agent as follows:
TO THE ESCROW AGENT:
TO THE STOCKHOLDER:
The Escrow Agent agrees to promptly deliver a copy of each Dispute Notice that
it receives to Holding Company.
(d) NEW ESCROW AGENT. If the Escrow Agent shall decline or cease
to act as Escrow Agent, Holding Company and the Stockholder shall
appoint a successor.
(e) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without
regard to the conflicts-of-law rules thereof.
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
(f) AMENDMENT OR MODIFICATION. The terms of this Agreement may be
altered, amended, modified or revoked by writing only, signed by
Holding Company, the Escrow Agent and the Stockholder.
(g) REPORTS FROM ESCROW AGENT. The Escrow Agent shall furnish to
Holding Company and the Stockholder quarterly reports listing each
transaction made by the Escrow Agent during such quarter with respect
to this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same agreement.
(i) HEADINGS. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not affect in any way the meaning
or interpretation of this Agreement.
(j) WAIVER OF COMPLIANCE; CONSENTS. Any failure of the parties
hereto to comply with any obligation, covenant, agreement or condition
contained herein may be waived in writing by the other parties hereto,
respectively, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any
other failure.
(k) VALIDITY. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which shall
remain in full force and effect.
(l) ASSIGNMENT. This Agreement shall not be assigned other than
by operation of law.
(m) BACKGROUND. The Background statement is true and correct and
is incorporated herein and made a part hereof.
[Signatures next page]
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UNITED FINANCIAL/FIRST SECURITY THIRD AMENDMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UNITED FINANCIAL HOLDINGS, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
ESCROW AGENT:
[NAME]
By: _____________________________________
Name: ___________________________________
Title: __________________________________
STOCKHOLDER:
By: _____________________________________
[NAME]