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EXHIBIT 10.4
AGREEMENT
THIS AGREEMENT is entered into as of _________ __, 1997, by and among
Xxxxxx Capital Group, Inc. ("TCG"), Xxxx Xxxxxx Financial Group, Inc. ("CTFG")
and those certain persons listed on Exhibit A hereof (the "Xxxxxx Family"), for
the purposes described below.
RECITALS
WHEREAS, the Xxxxxx Family and CTFG have entered into an Amended and
Restated Share Exchange Agreement dated as of June 12, 1996 (the "Share
Exchange Agreement");
WHEREAS, pursuant to Section 7(c) of the Share Exchange Agreement, the
Xxxxxx Family has formed TCG; and
WHEREAS, pursuant to Section 7(c) of the Share Exchange Agreement, TCG
shall assume certain obligations and shall indemnify CTFG for certain
liabilities;
NOW THEREFORE, the parties agree as follows:
1 . Capitalized Terms. Capitalized terms used but not otherwise defined
in this Agreement shall have the meanings assigned to such terms in the Share
Exchange Agreement.
2 . Entry, Ratification and Approval. TCG hereby enters into, ratifies
and approves the Share Exchange Agreement and all of the related transactions
required or contemplated by the terms thereof in the manner set forth in this
Agreement.
3 . Newco Stock. Unless the Share Exchange Agreement has been terminated
by the Xxxxxx Family pursuant to Section 13(d) of the Share Exchange Agreement,
TCG shall indemnify and hold harmless CTFG against all costs and liabilities
related to (a) the offer and sale of New Bank Securities or Newco Stock,
including but not limited to all underwriting, accounting, legal, printing,
filing fee and other expenses of such offer(s) and sale(s) and any liabilities
for misstatements or omissions in the offering documents related
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thereto or any part thereof and (b) the preparation, filing, amendment and
withdrawal of the Common Registration Statement.
4 . Private Letter Ruling. For the two year period following the
Closing Date, unless the Xxxxxx Family has received a written opinion from a
nationally recognized tax counsel, which opinion shall be reasonably
satisfactory in form and substance to tax counsel for CTFG, that the desired
transactions and any transaction related thereto shall neither affect the
qualification of the exchange of Newco Stock for CTFG Stock under Section 355
of the Code nor affect the validity of the Private Letter Ruling (a "Tax
Opinion"), (a) TCG shall cause the Bank to continue the active conduct of its
banking business, (b) TCG shall not merge or consolidate with or into any other
corporation, or cause the Bank to merge or consolidate with any other
corporation, (c) TCG shall not liquidate or partially liquidate, or cause the
Bank to liquidate or partially liquidate, (d) TCG shall not sell or transfer
any significant part of its assets or permit the Bank to sell or transfer any
significant part of its assets, (e) TCG shall not redeem or otherwise purchase
any of its capital stock or permit the Bank to redeem or otherwise purchase any
of its capital stock, and (f) TCG shall not issue, or permit the Bank to issue,
additional shares of its capital stock, except as contemplated by the Private
Letter Ruling. Regardless of whether the Xxxxxx Family has obtained the Tax
Opinion, TCG shall not enter into any agreement, arrangement or understanding
for transfer of control of the Bank for one year following the Closing Date (a
"Transfer Arrangement"), and if TCG enters into a Transfer Arrangement more
than one year but less than two years following the Closing Date, TCG shall
remain responsible for ensuring that, and shall obtain a written contractual
commitment from the other parties to the Transfer Arrangement that they shall
ensure that, the Bank complies with the obligations contained in this Section
4, except to the extent that the Tax Opinion also opines that the qualification
of the exchange of Newco Stock for CTFG Stock under Section 355 and the
validity of the Private Letter Ruling will not be affected by the particular
actions specified in the Tax Opinion. TCG and the Bank shall deliver a
certificate of an officer as to compliance with this Section 4 to CTFG on the
last day of each calendar
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quarter until the end of the two year period after the Closing Date.
5 . Deconsolidation. After the Closing, TCG shall take such steps with
CTFG and the Xxxxxx Family in accordance with generally accepted accounting
principles as are necessary to deconsolidate the Bank from CTFG for accounting
purposes.
6 . Bank Obligations. TCG shall cause the Bank to assume the liability
(and TCG shall and shall cause the Bank to indemnify CTFG and its subsidiaries
against such liability) for the severance or change in control payments
described in Section 10(j) (other than the first sentence thereof) of the Share
Exchange Agreement. After the Closing, TCG shall cause the Bank to comply with
its obligations under the third sentence of Section 3.1(a), the last sentence
of Section 5.2(a), the first sentence of Section 10(i), the second sentence of
Section 10(k), the second sentence of Section 10(m), Section 10(n), the second
sentence of Section 15(a) and Section 16 of the Share Exchange Agreement.
7 . Other Provisions. TCG shall be bound by Sections 10(n), 15(c), 15(d),
16 and 17 (to the extent of its own expenses) of the Share Exchange Agreement
to the same extent as if it were a party thereto. With respect to such Section
17, the fees and expenses of TCG are to be borne by TCG or the Xxxxxx Family
and not by CTFG.
8 . TCG and Bank Indemnity. After the Closing, TCG shall, and shall cause
the Bank to, indemnify and hold harmless CTFG and its affiliates from and
against any and all Losses (a) whenever incurred, arising or accrued, relating
to the Bank or CT Mortgage or CTFG's ownership of securities in the Bank CT
Mortgage or Alpha Capital Fund or (b) incurred, arising or accrued prior to the
Closing and relating to Auto Sub. After the Closing, TCG shall, and shall
cause the Bank to, indemnify and hold harmless CTFG and its affiliates from and
against any and all Losses whenever incurred, arising or accrued, relating to
TCG or CTFG's ownership of securities in TCG; provided, however, that TCG and
the Bank shall have no obligation to provide any
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indemnity pursuant to this sentence for any Losses which are primarily the
result of actions by CTFG.
9 . Indemnification by CTFG. CTFG hereby acknowledges that TCG and the
Bank shall be entitled to indemnification pursuant to Sections 15(b), (c) and
(d) of the Share Exchange Agreement to the same extent as the Xxxxxx Family.
10 . Other Benefits. CTFG hereby acknowledges that TCG shall be entitled
to all of the rights and benefits of the Share Exchange Agreement to the same
extent as if it had been a party thereto.
11 . General Provisions.
11.1 Amendments and Waiver. No amendment, waiver or consent with
respect to any provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties hereto, and any
such written and signed amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
11.2 Notices. All notices, requests, consents, demands and other
communications hereunder must be in writing.
11.3 Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.4 Successors and Assigns. This Agreement, and the rights and
obligations of the parties hereunder, shall inure to and be binding on the
parties hereto and their respective heirs, successors and assigns. No party
may assign (by operation of law or otherwise) any rights, benefits, duties or
obligations under this Agreement, without the prior written consent of the
other parties hereto; provided, however, that TCG or CTFG may , without such
consent, assign its rights under this Agreement to any successor in the event
of a merger, consolidation, sale of all or substantially all its assets,
liquidation or dissolution, if such assignee executes and delivers to the other
parties hereto an
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agreement satisfactory in form and substance to such other parties under
which such assignee assumes and agrees to perform and discharge all the
obligations and liabilities of the assigning party. No permitted assignment by
any party under this Section 11.4 shall relieve the assigning party of its
obligations hereunder.
11.5 Entire Agreement. This Agreement, the Share Exchange Agreement and the
documents referred to herein contain the entire agreement and understanding
among the parties with respect to the transactions contemplated hereby and
supersede all other agreements, understandings and undertakings among the
parties on the subject matter hereof.
11.6 Severability. If any provision or provisions of this Agreement shall
be held to be invalid or unenforceable for any reason whatsoever: (a) the
validity, legality, and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid or unenforceable) shall not in any
way be affected or impaired thereby; and (b) to the fullest extent possible,
the remaining provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision or provisions held invalid or unenforceable.
11.7 Partial Invalidity. In the event that any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
11.8 Governing Law. This Agreement shall be construed, enforced and
interpreted in accordance with the substantive laws of the State of Delaware
applicable to contracts made and to be performed wholly within said State.
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11.9 Xxxxxx Family Designees. The Xxxxxx Family members hereby appoint
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, or either of them, to act as their
designated representatives (the "Xxxxxx Family Designees") for the purpose of
exercising all power of the Xxxxxx Family necessary to administer this
Agreement, including, without limitation, the power to modify, amend or waive
provisions under this Agreement, give consents or instructions, or give or
receive notices and incur all out-of-pocket expenses including the reasonable
fees and costs of attorneys or agents, which the Xxxxxx Family Designees may
find it necessary to engage in the performance of such Xxxxxx Family Designees
duties. Any notice, direction, consent or other act to be received or given
by a Xxxxxx Family member shall be deemed properly received or given if
received or given by the Xxxxxx Family Designees. The Xxxxxx Family members,
by unanimous written consent thereof delivered to TCG, may change at any time
the Xxxxxx Family Designees.
11.10 No Amendment. Except as expressly provided herein, the Share Exchange
Agreement shall remain in full force and effect with no amendment or alteration
of any kind.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXX CAPITAL GROUP, INC.
By:
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Its:
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Title:
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XXXX XXXXXX FINANCIAL GROUP, INC.
By:
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Its:
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Title:
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Xxxxxx X Xxxxxx(1/)
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Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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Xxxx Xxxxxx(2/)
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Xxxxx Xxxxxx Xxxxx
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(1/)Individually and a trustee under self declaration of trust dated 9/17/96.
(2/)Individually and as trustee of the Xxxxxx Annual Gift Trust FBO Xxxxxxxxx
Xxxx Xxxxxx, the Xxxxxx Annual Gift Trust FBO Xxxx Xxxxxx, the Xxxxxx Annual
Gift Trust FBO Xxxxxxx Xxxx Xxxxx, the Xxxxxx Annual Gift Trust FBO Xxxxxxx
Xxxxxx, the Xxxxxx Annual Gift Trust FBO Xxxx Xxxxxxx Xxxxxx, the Xxxxxx Annual
Gift Trust FBO Xxxxx Xxxxxx Xxxxx, the Xxxxxx Annual Gift Trust FBO Xxxxxxx X.
Xxxxxx, the Xxxxxx Annual Gift Trust FBO Xxxxxxxxx Xxx Xxxxx, the Xxxxxx Annual
Gift Trust FBO Xxxxx Xxxxxx, the Xxxxxx Annual Gift Trust FBO Xxxx Xxxxxx, the
Xxxxxx Annual Gift Trust FBO Xxxxx Xxxxxx Xxxxxx, the Xxxxxx Annual Gift Trust
FBO Xxxxx Xxxxxx, the Xxxxxx Annual Gift Trust FBO Xxxxx X. Xxxxxx.
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Xxxxxx X. Xxxxx, as Trustee(3/)
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Xxxxx Xxxxxx, as Trustee of the
Xxxxx Xxxxxx Trust
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(3/)As trustee of the Xxxxxxx Xxxx Great Grandchildrens Trust FBO Family of
Xxxxxxx Xxxxxx (a general partner of Xxxxxx Family Partnership), the Xxxxxxx
Xxxx Grandchildrens Trust FBO Xxxxx Xxxxxx (a general partner of Xxxxxx Family
Partnership), the Xxxxxxx Xxxx Grandchildrens FBO Xxxxx Xxxxx (a general
partner of Xxxxxx Family Partnership), the Xxxxxx 1992 Trust FBO Xxxx Xxxxxx,
the Xxxxxxx Xxxx Great Grandchildrens Trust FBO Family of Xxxxx Xxxxxx Xxxxx,
the Xxxxxxx Xxxx Great Grandchildrens Trust FBO Family of Xxxxx Xxxxxx, the
Xxxxxx 1992 Trust FBO Xxxxxxx Xxxxxxxx Xxxxxx, the Xxxxxx 1992 Trust FBO
Xxxxxxxxx Xxx Xxxxx, the Xxxxx X. Xxxxxx Gift Trust, the Xxxxxx 1992 Trust FBO
Xxxx Xxxxxxx Xxxxxx, the Xxxxxx 1992 Trust FBO Xxxxxxx Xxxx Xxxxx, the Xxxxxxx
X. Xxxxxx Gift Trust, the Xxxxxx 1992 Trust FBO Xxxxxxxxx Xxxx Xxxxxx, the
Xxxxx Xxxxxx Gift Trust, and the Xxxxxx 1992 Trust FBO Xxxxx Xxxxxx Xxxxxx.
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Xxxx Xxxxxx Bank, as Trustee(4/)
By:________________________________
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(4/)As Trustee of the Trust FBO Xxxxxx X. Xxxxxx and the Iris Fund Tark.
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EXHIBIT A
XXXXXX FAMILY
Directly Owned Shares
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Xxxxxx Xxxxxx 53,900
Xxxxxxx Xxxxxx 86,880
Xxxxx Xxxxxx 126,880
Xxxxx Xxxxx 126,880
Indirectly Owned Shares
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Xxxx Xxxxxx TR FBO Xxxx Xxxxxx 21,720
Xxxxxx Xxxxx TR/BT Gift Trust 26,480
Xxxxxx Xxxxx TR/Xxxxx Xxxxxx Xxxxxx 8,800
Xxxx Xxxxxx TR/Xxxxx Xxxxxx Xxxxxx 11,320
Xxxx Xxxxxx TR/Xxxxx Xxxxxx 21,720
Xxxx Xxxxxx TR/Xxxxx Xxxxxx 21,720
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx 211,320
Xxxx Xxxxxx TR/Xxxxx Xxxxxx Xxxxx 21,720
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx
Xxxxx Gift Trust 211,320
Xxxxxx Xxxxx TR/Xxxxx Xxxxxx 26,520
Xxxx Xxxxxx Bank/FBO SJT 38,040
Xxxx Xxxxxx Bank/Xxxx Xxxx Fund 152,200
Xxxxxx Xxxxx TR/FBO X. Xxxxx 8,800
Xxxx Xxxxxx TR/FBO X. Xxxxx 4,640
Xxxxxx Xxxxx TR/FBO X. X. Xxxxxx 8,800
Xxxx Xxxxxx TR/FBO Xxxxx Xxxxxx 21,760
Xxxxxx Xxxxx TR/Tark/Xxxxx Xxxxxx 261,320
Xxxxxx Xxxxx TR/Tark/X. Xxxxx 261,320
Xxxxxx Xxxxx TR/Tark/X. Xxxxxx 261,320
Xxxxxx Xxxxx TR/JWT Gift Trust 26,520
Xxxx Xxxxxx TR/FBO JWT 17,800
Xxxxxx Xxxxx TR/Tark/X. Xxxxxx 211,320
Xxxxxx Xxxxx TR/FBO Xxxx Xxxxxx 4,800
Xxxx Xxxxxx TR/FBO Xxxx Xxxxxx 16,960
Xxxx Xxxxxx TR/FBO Xxxxxxx Xxxxxx 21,760
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Indirectly Owned Shares
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Xxxxxx Xxxxx TR/FBO X. Xxxxx 8,800
Xxxx Xxxxxx TR/FBO X. Xxxxx 11,320
Xxxxxx Xxxxx TR/FBO Xxxx Xxxxxx 8,800
Xxxx Xxxxxx TR/FBO Xxxx Xxxxxx 1,480
Xxxx Xxxxxx TR/FBO Xxxxxxxxx Xxxxxx 16,960
Xxxxxx Xxxxx TR/FBO Xxxxxxxxx Xxxxxx 4,800
Xxxxxx Family Partnership 750,000
Xxxxxx X Xxxxxx Trust under self 509,280
Xxxxx Xxxxxx Trust 40,000
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