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Exhibit 2.1
AGREEMENT TO MERGE
AMONG
FIRST NATIONAL BANK OF OSCEOLA COUNTY
CENTERSTATE BANKS OF FLORIDA, INC.
AND
FIRST INTERIM NATIONAL BANK OF OSCEOLA COUNTY
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TABLE OF CONTENTS
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ARTICLE I - THE MERGER............................................................................................2
Section 1.1 Consummation of Merger; Closing Date...................................................2
Section 1.2 Effect of Merger.......................................................................2
Section 1.3 Further Assurances.....................................................................3
Section 1.4 Directors and Officers.................................................................3
Section 1.5 Name of Surviving Bank.................................................................3
Section 1.6 Capitalization of Surviving Bank.......................................................3
Section 1.7 Articles of Association and Bylaws.....................................................3
Section 1.8 Absence of Trust Powers................................................................3
ARTICLE II - CONVERSION OF SHARES.................................................................................4
Section 2.1 Manner of Conversion of First National/Osceola Shares..................................4
Section 2.2 First National/Osceola Stock Options and Related Matters...............................4
Section 2.3 Fractional Shares......................................................................5
Section 2.4 Effectuating Conversion................................................................5
Section 2.5 Laws of Escheat........................................................................6
Section 2.6 CBF Shares.............................................................................6
Section 2.7 FINB Shares............................................................................6
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF
FIRST NATIONAL/OSCEOLA.................................................................7
Section 3.1 Representations and Warranties of First National/Osceola...............................7
(a) Organization, Qualification, and Corporate Power.......................................7
(b) Capitalization.........................................................................7
(c) First National/Osceola Subsidiaries....................................................8
(d) Authorization of Transaction...........................................................8
(e) Noncontravention.......................................................................8
(f) Financial Statements...................................................................9
(g) Undisclosed Liabilities................................................................9
(h) Brokers' Fees..........................................................................9
(i) Taxes.................................................................................10
(j) Allowance for Loan or Credit Losses...................................................10
(k) Properties; Insurance.................................................................10
(1) Material Contracts....................................................................11
(m) Material Contract Defaults............................................................11
(n) Compliance with Laws..................................................................11
(o) Employee Benefit Plans................................................................12
(p) Legal Proceedings.....................................................................13
(q) Absence of Certain Changes or Events..................................................14
(r) Reports...............................................................................14
(s) Statements True and Correct...........................................................14
(t) Environmental Matters.................................................................14
(u) Labor Matters.........................................................................15
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ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF CBF...............................................................16
Section 4.1 Representations and Warranties of CBF.................................................16
(a) Organization, Qualification, and Corporate Power......................................16
(b) Capitalization........................................................................16
(c) CBF Subsidiaries......................................................................17
(d) Authorization of Transaction..........................................................17
(e) Noncontravention......................................................................17
(f) Statements True and Correct...........................................................17
ARTICLE V - COVENANTS AND AGREEMENTS.............................................................................18
Section 5.1 Covenants.............................................................................18
(a) Current Information...................................................................18
(b) Regulatory Matters and Approvals......................................................18
(c) Tax Opinion...........................................................................19
(d) Conduct of Business Prior to the Effective Time of the Merger.........................20
(e) Forbearance...........................................................................20
(f) Issuance of Securities................................................................21
(g) No Acquisitions.......................................................................21
(h) Other Actions.........................................................................22
(i) Government Filings....................................................................22
(j) Tax-Free Reorganization Treatment.....................................................22
(k) Full Access...........................................................................22
(1) Notice of Material Adverse Developments...............................................22
(m) Exclusivity...........................................................................23
(n) Filings with the Offices..............................................................23
(o) Press Releases........................................................................23
(p) Agreements of Affiliates..............................................................23
(q) Miscellaneous Agreements and Consents.................................................23
(r) Indemnification.......................................................................24
(s) Fairness Opinions.....................................................................24
(t) Employee Benefit Plans................................................................24
ARTICLE VI - CONDITIONS TO THE OBLIGATIONS OF
FIRST NATIONAL/OSCEOLA AND CBF........................................................25
Section 6.1 Conditions to Obligation to Close.....................................................25
(a) Conditions to Obligation of CBF.......................................................25
(b) Conditions to Obligation of First National/Osceola....................................26
ARTICLE VII - TERMINATION........................................................................................27
Section 7.1 Termination...........................................................................27
(a) Termination of Agreement..............................................................27
(b) Effect of Termination.................................................................28
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ARTICLE VIII - MISCELLANEOUS.....................................................................................28
Section 8.1 Miscellaneous.........................................................................28
(a) Survival..............................................................................28
(b) No Third Party Beneficiaries..........................................................28
(c) Entire Agreement......................................................................28
(d) Successors and Assigns................................................................28
(e) Counterparts..........................................................................29
(f) Headings..............................................................................29
(g) Notices...............................................................................29
(h) Governing Law.........................................................................29
(i) Amendments and Waivers................................................................29
(j) Severability..........................................................................30
(k) Expenses..............................................................................30
(l) Construction..........................................................................30
(m) Incorporation of Exhibits and Schedules...............................................30
(n) Jurisdiction and Venue................................................................30
(o) Remedies Cumulative...................................................................31
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AGREEMENT TO MERGE
AMONG
FIRST NATIONAL BANK OF OSCEOLA COUNTY,
CENTERSTATE BANKS OF FLORIDA, INC.
AND
FIRST INTERIM NATIONAL BANK OF OSCEOLA COUNTY
This Agreement to Merge (the "Agreement") is dated as of the 10th day
of December, 1999 by and among FIRST NATIONAL BANK OF OSCEOLA COUNTY, a national
banking association ("First National/Osceola") and CENTERSTATE BANKS OF FLORIDA,
INC., a Florida corporation ("CBF"); to be joined in by FIRST INTERIM NATIONAL
BANK OF OSCEOLA COUNTY, an interim national banking association to be organized
as a wholly-owned subsidiary of CBF under the laws of the United States and to
become a party to this Agreement upon its organization ("FINB"). First
National/Osceola, CBF and FINB are individually referred to in this Agreement as
a "Party" and collectively as the "Parties."
BACKGROUND
The respective Boards of Directors of First National/Osceola and CBF
deem it in the best interests of First National/Osceola and CBF, respectively,
and of their respective shareholders, that First National/Osceola and FINB merge
pursuant to this Agreement in a transaction that qualifies as a reorganization
pursuant to Section 368(a) of the Internal Revenue Code of 1986 (the "Internal
Revenue Code") (the "Merger"), and the Boards of Directors of the Parties have
approved this Agreement and the Merger, which provides for CBF to issue shares
of its common stock to the shareholders of First National/Osceola, as herein
provided.
This Agreement is between (A) First National/Osceola, being located at
000 Xxxxx Xxxxxxx Xxxxxx, Xxxx xx Xxxxxxxxx, Xxxxxx of Osceola, in the State of
Florida, with a capital of $8,399,367, consisting of (i) 2,555,875 shares of
common stock divided into 511,175 shares of common stock, each of $5.00 par
value, (ii) surplus of $2,634,579, and (iii) undivided profits of $3,208,913 as
of September 30, 1999, acting pursuant to a resolution of its board of
directors, adopted by the vote of a majority of its directors, pursuant to the
authority given by and in accordance with the provisions of the Act of November
7, 1918, as amended (12 U.S.C. 215(a)); (B) CBF, which has been organized for
purposes of serving as a bank holding company for First National/Osceola and
other banks; and (C) FINB, to be located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx 00000, with a capital of $200,000, divided into 2,000 shares of common
stock, each of $100 par value, surplus of $40,000, and no undivided profits,
acting pursuant to a resolution to be adopted by its Board of Directors, and by
the vote of a majority of its directors, pursuant to the authority given by and
in accordance with the provisions of the Act of November 7, 1918, as amended (12
U.S.C. 215(a)).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations, warranties and agreements herein contained, the
Parties agree as follows:
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ARTICLE I
THE MERGER
Section 1.1 Consummation of Merger; Closing Date. (a) Subject to the
provisions hereof, First National/Osceola shall be merged with and into FINB
(which has heretofore and shall hereinafter be referred to as the "Merger"),
under the charter of First National/Osceola, pursuant to 12 U.S.C. ss.215a of
the National Bank Act, and FINB shall be the surviving corporation (sometimes
hereinafter referred to as "Surviving Bank" when reference is made to it after
the Effective Time of the Merger (as defined below)). The name of the Surviving
Bank shall be First National Bank of Osceola County, and the business of the
Surviving Bank shall be that of a national banking association. The Merger shall
become effective on the date and at the time set forth in the Certificate of
Merger relating to the Merger issued by the Office of the Comptroller of the
Currency (the "OCC") (such time is hereinafter referred to as the "Effective
Time of the Merger"). Subject to the terms and conditions hereof, unless
otherwise agreed upon by First National/Osceola and CBF, the Effective Time of
the Merger shall occur on the 10th business day following the later to occur of
(i) the effective date (including the expiration of any applicable waiting
period) of the last required Consent (as defined below) of any Regulatory
Authority (as defined below) having authority over the transactions contemplated
pursuant to this Agreement, (ii) the date on which the shareholders of First
National/Osceola approve the transactions contemplated by this Agreement, and
(iii) the date of the satisfaction or waiver of all other conditions precedent
to the transactions contemplated by this Agreement. As used in this Agreement,
"Consent" shall mean a consent, approval, authorization, waiver, clearance,
exemption or similar affirmation by any person pursuant to any contract, permit,
law, regulation or order, and "Regulatory Authorities" shall mean, collectively,
the OCC, the Florida Department of Banking and Finance (the "Florida
Department"), the Office of Thrift Supervision ("OTS"), the Federal Trade
Commission (the "FTC"), the United States Department of Justice (the "Justice
Department"), the Board of Governors of the Federal Reserve System (the "FRB"),
the Federal Deposit Insurance Corporation (the "FDIC"), the National Association
of Securities Dealers, Inc., all national securities exchanges and the
Securities and Exchange Commission (the "SEC").
(b) The closing of the Merger (the "Closing") shall take place
at such location as the Parties hereto shall determine at 10:00 a.m. local time
on the day that the Effective Time of the Merger occurs, or such other date,
time and place as the Parties may agree (the "Closing Date"). Subject to the
provisions of this Agreement, at the Closing there shall be delivered to each of
the Parties hereto the opinions, certificates and other documents and
instruments required to be so delivered pursuant to this Agreement.
(c) After the Effective Time of the Merger, the business of
the Surviving Bank shall be conducted at its main office which shall be located
at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and at its legally established
branches.
Section 1.2 Effect of Merger. At the Effective Time of the Merger,
First National/Osceola shall be merged with and into FINB, under the charter of
First National/Osceola, and the separate existence of First National/Osceola
shall cease. The Surviving Bank shall be that of a national banking association.
Except as otherwise provided in this Agreement, the Surviving Bank shall have
all the rights, privileges, immunities and powers and shall be subject to all
the duties and liabilities of a banking association organized under the laws of
the United States and shall thereupon and thereafter possess all other
privileges, immunities and franchises of a private, as well as of a public
nature, of each of the constituent corporations. All property (real, personal
and mixed) and all debts on whatever account, including subscriptions to shares,
and all choses in action, all and every other interest, of or belonging to or
due to each of the constituent corporations so merged shall be taken and deemed
to be transferred to and vested in the Surviving Bank without further act or
deed. The
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title to any real estate, or any interest therein, vested in any of the
constituent corporations shall not revert or be in any way impaired by reason of
the Merger. Except as otherwise provided in this Agreement, the Surviving Bank
shall thenceforth be responsible and liable for all the liabilities and
obligations of each of the constituent corporations so merged and any claim
existing or action or proceeding pending by or against either of the constituent
corporations may be prosecuted as if the Merger had not taken place or the
Surviving Bank may be substituted in its place. Neither the rights of creditors
nor any liens upon the property of any constituent corporation shall be impaired
by the Merger.
Section 1.3 Further Assurances. From and after the Effective Time of
the Merger, as and when requested by the Surviving Bank, the officers and
directors of First National/Osceola last in office shall execute and deliver or
cause to be executed and delivered in the name of First National/Osceola such
deeds and other instruments and take or cause to be taken such further or other
actions as shall be necessary in order to vest or perfect in or confirm of
record or otherwise to the Surviving Bank title to and possession of all of the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of First National/Osceola.
Section 1.4 Directors and Officers. From and after the Effective Time
of the Merger and until their successors shall be duly elected and qualified,
Xxxxx X. Xxxxxxx, G. Xxxxxx Xxxxxxxxx, Sr., Xxxxx X. Xxxxxx, X. Xxxxx Judge,
Jr., Xxxxxx X. Xxxxxx, XX, X. Xxxxxx Rocker and Xxxxx X. Xxxxx shall serve as
the CBF Board of Directors (or, if any one or more of such Directors is
unwilling or unable to serve as a Director of CBF, such substitute Director as
the then remaining directors of CBF shall determine). From and after the
Effective Time of the Merger and until their successors shall be duly elected
and qualified, the directors and executive officers of the Surviving Bank shall
consist of those individuals who were serving as directors and executive
officers, respectively, of First National/Osceola as of the Effective Time of
the Merger. The names and addresses of the Directors and executive officers of
the Surviving Bank are attached hereto as Schedule 1.4. From and after the
Effective Time of the Merger and until their successors shall be duly elected
and qualified: Xxxxx X. Xxxxx shall serve as Chairman of the Board, President
and Chief Executive Officer, G. Xxxxxx Xxxxxxxxx, Sr. shall serve as Vice
Chairman of the Board, and Xxxxxx X. Xxxxxxxx shall serve as Secretary.
Section 1.5 Name of Surviving Bank. The name of the Surviving Bank
shall be First National Bank of Osceola County.
Section 1.6 Capitalization of Surviving Bank. As of the Effective Time
of the Merger, the Surviving Bank shall have 550,000 shares of common stock, par
value $5.00 per share, authorized of which 511,175 shares shall be issued and
outstanding (plus shares of First National/Osceola common stock issued after
September 30,1999), all of which shall be owned by CBF. The Surviving Bank shall
have no other classes of capital stock authorized or outstanding. As of the
Effective Time of the Merger, the capital, surplus and retained earnings of the
Surviving Bank shall be as set forth on Schedule 1.6. Preferred stock shall not
be issued by the Surviving Bank.
Section 1.7 Articles of Association and Bylaws. The Articles of
Association and Bylaws under which the Surviving Bank will operate are attached
hereto as Schedule 1.7.
Section 1.8 Absence of Trust Powers. The Surviving Bank shall not have
trust powers.
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ARTICLE II
CONVERSION OF SHARES
Section 2.1 Manner of Conversion of First National/Osceola Shares.
Subject to the provisions hereof, as of the Effective Time of the Merger and by
virtue of the Merger and without any further action on the part of the holder of
any shares of common stock of First National/Osceola, par value $5.00 per share
(the "First National/Osceola Shares"):
(a) All First National/Osceola Shares which are held by First
National/Osceola as treasury stock, if any, shall be canceled and retired and no
consideration shall be paid or delivered in exchange therefor.
(b) Subject to the terms and conditions of this Agreement,
including, without limitation, Section 2.3 hereof and except with regard to
Dissenting First National/Osceola Shares (as hereinafter defined), each First
National/Osceola Share outstanding immediately prior to the Effective Time of
the Merger shall be converted into the right to receive 2.00 shares of common
stock of CBF, par value $.01 per share (the "CBF Shares"). The applicable amount
of CBF Shares issuable in the Merger for each First National/Osceola Share
pursuant to this Section, as may be adjusted as provided herein, shall be
hereinafter referred to as the "Conversion Ratio." The Conversion Ratio,
including the number of CBF Shares issuable in the Merger, shall be subject to
an appropriate adjustment in the event of any stock split, reverse stock split,
dividend payable in CBF Shares, reclassification or similar distribution whereby
CBF issues CBF Shares or any securities convertible into or exchangeable for CBF
Shares without receiving any consideration in exchange therefor, provided that
the record date of such transaction is a date after the date of this Agreement
and prior to the Effective Time of the Merger.
(c) Each outstanding First National/Osceola Share, the holder
of which has perfected dissenters' rights in accordance with the provisions of
the National Bank Act (the "Dissent Provisions") and has not effectively
withdrawn or lost such holder's right to such appraisal (the "Dissenting First
National/Osceola Shares"), shall not be converted into or represent a right to
receive the CBF Shares issuable in the Merger but the holder thereof shall be
entitled only to such rights as are granted by the Dissent Provisions. First
National/Osceola shall give CBF prompt notice upon receipt by First
National/Osceola of any written objection to the Merger and any written demands
for payment of the fair or appraised value of First National/Osceola Shares, and
of withdrawals of such demands, and any other instruments provided to First
National/Osceola pursuant to the Dissent Provisions (any shareholder duly making
such demand being hereinafter called a "Dissenting Shareholder"). Each
Dissenting Shareholder who becomes entitled, pursuant to the Dissent Provisions,
to payment of fair value of any First National/Osceola Shares held by such
Dissenting Shareholder shall receive payment therefor from the Surviving Bank
(but only after the amount thereof shall have been agreed upon or at the times
and in the amounts required by the Dissent Provisions) and all of such
Dissenting Shareholder's First National/Osceola Shares shall be canceled. If any
Dissenting Shareholder shall have failed to perfect or shall have effectively
withdrawn or lost such right to demand payment of fair or appraised value, the
First National/Osceola Shares held by such Dissenting Shareholder shall
thereupon be deemed to have been converted into the right to receive the
consideration to be issued in the Merger as provided by this Agreement.
Section 2.2 First National/Osceola Stock Options and Related Matters.
As of the Effective Time of the Merger, all rights with respect to the First
National/Osceola Shares issuable pursuant to the exercise of stock purchase
options ("First National/Osceola Options") granted by First National/Osceola,
and which are outstanding at the Effective Time of Merger shall be converted
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into options for CBF Shares (the "Merger Options") in compliance with any
restrictions contained in the plan or agreement, if any, under which such First
National/Osceola Options were issued. Each holder of a First National/Osceola
Option shall have the right to acquire as of the Effective Time of the Merger a
number of CBF Shares equal to the product (rounded up to the next whole share)
of (i) the number of First National/Osceola Shares covered by such First
National/Osceola Option immediately prior to the Effective Time of the Merger
and (ii) the Conversion Ratio; and the exercise price per share of the CBF
Shares at which such First National/Osceola Option is exercisable shall be an
amount (rounded up to the next whole cent) computed by dividing (i) the exercise
price per share of the First National/Osceola Shares at which such First
National/Osceola Option is exercisable immediately prior to the Effective Time
of the Merger by (ii) the Conversion Ratio.
Section 2.3 Fractional Shares. Notwithstanding any other provision of
this Agreement, each holder of First National/Osceola Shares converted pursuant
to the Merger who would otherwise have been entitled to receive a fraction of a
CBF Share (after taking into account all certificates delivered by such holder),
shall receive, in lieu thereof, cash (without interest) in an amount equal to
such fractional part of such CBF Share, multiplied by the book value per First
National/Osceola Share as of the end of the calendar month immediately preceding
or occurring on the Effective Time of the Merger. No such holder shall be
entitled to dividends, voting rights or any other rights as a shareholder in
respect of any fractional share.
Section 2.4 Effectuating Conversion. (a) CBF, or such other institution
as CBF may designate, shall serve as the exchange agent (the "Exchange Agent").
The Exchange Agent may employ sub-agents in connection with performing its
duties. After the Effective Time of the Merger, CBF shall cause the Exchange
Agent to deliver the consideration to be paid by CBF for the First
National/Osceola Shares, along with the appropriate cash payment in lieu of
fractional interests in CBF Shares. As promptly as practicable after the
Effective Time of the Merger, the Exchange Agent shall send or cause to be sent
to each former holder of record of First National/Osceola Shares transmittal
materials (the "Letter of Transmittal") for use in exchanging their certificates
formerly representing First National/Osceola Shares for the consideration
provided for in this Agreement. The Letter of Transmittal shall contain
instructions with respect to the surrender of certificates representing First
National/Osceola Shares and the receipt of the consideration contemplated by
this Agreement and shall require each holder of First National/Osceola Shares to
transfer good and marketable title to such First National/Osceola Shares to CBF,
free and clear of all liens, claims and encumbrances.
(b) At the Effective Time of the Merger, the stock transfer
books of First National/Osceola shall be closed as to holders of First
National/Osceola Shares immediately prior to the Effective Time of the Merger
and no transfer of First National/Osceola Shares by any such holder shall
thereafter be made or recognized and each outstanding certificate formerly
representing First National/Osceola Shares shall, without any action on the part
of any holder thereof, no longer represent First National/Osceola Shares. If,
after the Effective Time of the Merger, certificates are properly presented to
CBF, such certificates shall be exchanged for the consideration contemplated by
this Agreement into which the First National/Osceola Shares represented thereby
were converted in the Merger.
(c) In the event that any holder of First National/Osceola
Shares is unable to deliver the certificate which represents such holder's First
National/Osceola Shares, CBF, in the absence of actual notice that any First
National/Osceola Shares theretofore represented by any such certificate have
been acquired by a bona fide purchaser, may, in its discretion, deliver to such
holder the consideration contemplated by this Agreement and the amount of cash
representing fractional CBF Shares to which such holder is entitled in
accordance with the provisions of this Agreement upon the presentation of all of
the following:
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(i) An affidavit or other evidence to the reasonable
satisfaction of CBF that any such certificate has been lost, wrongfully taken or
destroyed;
(ii) Such security or indemnity as may be reasonably
requested by CBF to indemnify and hold CBF harmless; and
(iii) Evidence to the satisfaction of CBF that such
holder is the owner of the First National/Osceola Shares theretofore represented
by each certificate claimed by such holder to be lost, wrongfully taken or
destroyed and that such holder is the person who would be entitled to present
each such certificate for exchange pursuant to this Agreement.
(d) In the event that the delivery of the consideration
contemplated by this Agreement and the amount of cash representing fractional
CBF Shares are to be made to a person other than the person in whose name any
certificate representing First National/Osceola Shares surrendered is
registered, such certificate so surrendered shall be properly endorsed (or
accompanied by an appropriate instrument of transfer), with the signature(s)
appropriately guaranteed, and otherwise in proper form for transfer, and the
person requesting such delivery shall pay any transfer or other taxes required
by reason of the delivery to a person other than the registered holder of such
certificate surrendered or establish to the satisfaction of CBF that such tax
has been paid or is not applicable.
(e) No holder of First National/Osceola Shares shall be
entitled to receive any dividends or distributions declared or made with respect
to the CBF Shares with a record date before the Effective Time of the Merger.
Neither the consideration contemplated by this Agreement, any amount of cash
representing fractional CBF Shares nor any dividend or other distribution with
respect to CBF Shares where the record date thereof is on or after the Effective
Time of the Merger shall be paid to the holder of any unsurrendered certificate
or certificates representing First National/Osceola Shares as provided for by
this Agreement. Subject to applicable laws, following surrender of any such
certificate or certificates, there shall be paid to the holder of the
certificate or certificates then representing CBF Shares issued in the Merger,
without interest at the time of such surrender, the consideration contemplated
by this Agreement, the amount of any cash representing fractional CBF Shares and
the amount of any dividends or other distributions with respect to CBF Shares to
which such holder is entitled as a holder of CBF Shares.
Section 2.5 Laws of Escheat. If any of the consideration due or other
payments to be paid or delivered to the holders of First National/Osceola Shares
is not paid or delivered within the time period specified by any applicable laws
concerning abandoned property, escheat or similar laws, and if such failure to
pay or deliver such consideration occurs or arises out of the fact that such
property is not claimed by the proper owner thereof, CBF shall be entitled to
dispose of any such consideration or other payments in accordance with
applicable laws concerning abandoned property, escheat or similar laws. Any
other provision of this Agreement notwithstanding, none of First
National/Osceola, CBF, FINB, the Surviving Bank, nor any other person acting on
their behalf shall be liable to a holder of First National/Osceola Shares for
any amount paid or property delivered in good faith to a public official
pursuant to and in accordance with any applicable abandoned property, escheat or
similar law.
Section 2.6 CBF Shares. The one CBF Share issued and outstanding at the
Effective Time of the Merger shall be cancelled and thus shall not be
outstanding after the Merger.
Section 2.7 FINB Shares. The shares of FINB common stock, par value
$100 per share, issued and outstanding at the Effective Time of the Merger shall
be converted as a result of, and upon the Effective Time of the Merger, into
511,175 shares of common stock, each of $5.00 par
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value (plus shares of First National/Osceola Shares issued by First
National/Osceola after September 30, 1999).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FIRST NATIONAL/OSCEOLA
Section 3.1 Representations and Warranties of First National/Osceola.
First National/Osceola represents and warrants to CBF that the statements
contained in this Article III are correct and complete as of the date of this
Agreement and shall be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article III), except (i) representations and
warranties which are confined to a specified date shall speak only as of such
date, (ii) as expressly contemplated by this Agreement, or (iii) as set forth in
the disclosure schedule prepared by First National/Osceola and delivered to CBF
prior to the date of this Agreement (the "First National/Osceola Disclosure
Schedule"). The First National/Osceola Disclosure Schedule has been arranged in
paragraphs corresponding to the numbered and lettered paragraphs contained in
this Article III.
(a) Organization, Qualification, and Corporate Power. First
National/Osceola is a national banking association duly organized, validly
existing, and in good standing under the laws of the United States. First
National/Osceola is duly authorized to engage in the business of banking in
Florida as an insured bank under the Federal Deposit Insurance Act, as amended
(the "FDIA"). First National/Osceola is duly authorized to conduct business and
is in good standing under the laws of each jurisdiction in which the nature of
its business or the ownership or leasing of its properties requires such
qualification except where the lack of such qualification would not have a
material adverse effect on its (i) business, financial condition or results of
operations, or (ii) ability to consummate the transactions contemplated by this
Agreement (together, its "Condition"); it being understood and agreed that, for
purposes of this Agreement, a material adverse effect on the Condition of a
Party shall not include a decline in results of operations resulting from any
change in law, rule, regulation or GAAP which impacts banks or bank holding
companies generally in a substantially similar manner. First National/Osceola
has full corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it. True and
complete copies of the Articles of Association and the Bylaws of First
National/Osceola are attached hereto as Schedule 3(a). First National/Osceola
has in effect all federal, state, local and foreign governmental, regulatory and
other authorizations, permits and licenses necessary for it to own or lease its
properties and assets and to carry on its business as now conducted, the absence
of which, individually or in the aggregate, would have a material adverse effect
on the Condition of First National/Osceola.
(b) Capitalization. The authorized capital stock of First
National/Osceola consists of 550,000 First National/Osceola Shares, of which
511,175 First National/Osceola Shares are issued and outstanding on the date of
this Agreement. There are no other classes of capital stock of First
National/Osceola authorized. First National/Osceola holds no First
National/Osceola Shares as treasury stock. All of the issued and outstanding
First National/Osceola Shares have been duly authorized and are validly issued,
fully paid and nonassessable. None of the outstanding First National/Osceola
Shares has been issued in violation of any preemptive rights of the current or
past stockholders of First National/Osceola. Except with respect to the 2,650
First National/Osceola Shares issuable pursuant to the First National/Osceola
Options, there are no outstanding or authorized options, warrants, rights,
contracts, calls, puts, rights to subscribe, conversion rights, or other
agreements or commitments to which First National/Osceola is a party or which
are binding upon First National/Osceola or, to the Knowledge of First
National/Osceola, any other party
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providing for the issuance, voting, transfer, disposition, or acquisition of any
of the capital stock of First National/Osceola. There are no outstanding or
authorized stock appreciation, phantom stock or similar rights with respect to
First National/Osceola. For purposes of this Agreement, the term "Knowledge"
means actual knowledge after reasonable investigation of the Chairman,
President, Chief Financial Officer, Chief Accounting Officer or any Executive or
Senior Vice President of such Party.
(c) First National/Osceola Subsidiaries. First
National/Osceola has no Subsidiary or Subsidiaries. For purposes of this
Agreement, the term "Subsidiary" means all those corporations, associations or
other entities of which the entity in question owns or controls 5% or more of
the outstanding equity securities either directly or through an unbroken chain
of entities as to each of which 5% or more of the outstanding equity securities
is owned directly or indirectly by its parent; provided, however, there shall
not be included any such entity acquired through foreclosure, any such entity
which owns or operates an automatic teller machine interchange network, any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity or any such entity which is a general industry association or group.
(d) Authorization of Transaction. First National/Osceola has
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations hereunder;
provided, however, that First National/Osceola cannot consummate the Merger
unless and until all requisite approvals are received from the Regulatory
Authorities and the approval of the shareholders of First National/Osceola has
been obtained. Subject to the foregoing sentence, (i) this Agreement has been
duly executed and delivered by First National/Osceola and this Agreement
constitutes a valid and binding agreement of First National/Osceola, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally, general
equitable principles and the discretion of courts in granting equitable
remedies, (ii) the performance by First National/Osceola of its obligations
under this Agreement and the consummation of the Merger and the other
transactions provided for under this Agreement have been or will be duly and
validly authorized by all necessary corporate action on the part of First
National/Osceola, and (iii) the Board of Directors of First National/Osceola has
approved the execution, delivery and performance of this Agreement and the
consummation of the Merger and the other transactions provided for under this
Agreement. Other than to or from the Regulatory Authorities or to or from the
Internal Revenue Service ("IRS") or the Pension Benefit Guaranty Corporation
("PBGC") with respect to any employee benefit plans, First National/Osceola does
not need to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement, except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a material adverse effect on
the Condition of First National/Osceola.
(e) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) subject to the receipt of the approvals contemplated in Section 3(d)
above, violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge, or other restriction of any government,
governmental agency, or court to which First National/Osceola is subject or any
provision of the Articles of Association or Bylaws of First National/Osceola or
(ii) with the passing of time or the giving of notice or both, conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any contract, lease, sublease, license, franchise,
permit, indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest, or other obligation to which First
National/Osceola is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets) except where the violation, conflict,
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breach, default, acceleration, termination, modification, cancellation, failure
to give notice, or Security Interest would not have a material adverse effect on
the Condition of First National/Osceola. For purposes of this Agreement, the
term "Security Interest" means any mortgage, pledge, security interest,
encumbrance, charge, or other lien, other than (a) mechanics, materialmen, and
similar liens, (b) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate proceedings, (c) liens
arising under workers compensation, unemployment insurance, social security,
retirement, and similar legislation, (d) liens on goods in transit incurred
pursuant to documentary letters of credit, (e) purchase money liens and liens
securing rental payments under capital lease arrangements, and (f) other liens
arising in the Ordinary Course of Business and not incurred in connection with
the borrowing of money. For purposes of this Agreement, the term "Ordinary
Course of Business" means the ordinary course of business consistent with past
custom and practice (including with respect to quantity and frequency).
(f) Financial Statements. First National/Osceola has delivered
to CBF prior to the execution of this Agreement copies of the following
financial statements of First National/Osceola (collectively referred to herein
as the "First National/Osceola Financial Statements"): (i) audited balance
sheets of First National/Osceola at December 31, 1998 and 1997, and the related
statements of (A) income, (B) shareholders' equity and (C) cash flows for the
years then ended and the notes thereto as reported upon by its independent
certified public accountants, and (ii) unaudited balance sheet of First
National/Osceola at September 30, 1999, and the related unaudited statements of
(A) income and (B) shareholders' equity for the period then ended.
The First National/Osceola Financial Statements (as of the
dates thereof and for the periods covered thereby): (i) have been prepared from
the books and records of First National/Osceola, which in all material respects
account for those transactions which in accordance with good business practices
and applicable banking and other legal requirements are required to be accounted
for, and (ii) present fairly in all material respects the financial position and
the results of operations and cash flows of First National/Osceola as of the
dates and for the periods indicated, in accordance with GAAP, applied on a basis
consistent with prior periods except as disclosed in the notes thereto or, in
the case of unaudited quarterly statements, subject to normal recurring year-end
adjustments that are not material and the absence of certain footnote and cash
flow information.
(g) Undisclosed Liabilities. First National/Osceola has no
liability (whether known or unknown, whether absolute or contingent, whether
liquidated or unliquidated, and whether due or to become due), including any
liability for taxes, except for (i) liabilities for future disbursements on
letters of credit, lines of credit and similar instruments or unfunded loan
commitments, (ii) liabilities accrued or reserved against in the balance sheet
dated as of September 30, 1999 included in the First National/Osceola Financial
Statements or reflected in the notes thereto, and (iii) liabilities which have
arisen after September 30, 1999 in the Ordinary Course of Business or in
connection with the transactions provided for in this Agreement (none of which
relates to any breach of contract, breach of warranty, tort, infringement, or
violation of law or arose out of any charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand and none of which,
individually or in the aggregate, materially and adversely affect the Condition
of First National/Osceola). Since September 30, 1999, First National/Osceola has
not incurred or paid any obligation or liability which would be material to the
Condition of First National/Osceola, except in the Ordinary Course of Business.
(h) Brokers' Fees. Neither First National/Osceola nor any of
its officers, directors or employees, has any liability or obligation to pay any
fees or commissions to, or has employed, any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
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(i) Taxes.
(i) All federal, state, local and foreign tax returns
required to be filed by or on behalf of First National/Osceola have been timely
filed or requests for extensions have been timely filed, granted and have not
expired, for periods ending on or before September 30, 1999, and all such
returns filed are true, complete and accurate in all material respects. First
National/Osceola has timely paid or caused to be paid all taxes shown to be due
on such tax returns. There is no audit, examination, deficiency or refund
litigation or matter in controversy with respect to any taxes currently pending
involving First National/Osceola. All material tax, interest, additions, and
penalties due with respect to completed and settled examinations or concluded
litigation have been paid, accrued or provided for.
(ii) First National/Osceola has not executed an extension
or waiver of any statute of limitations on the assessment or collection of any
material tax due that is currently in effect.
(iii) Adequate provision for any federal, state, local or
foreign taxes due or to become due for First National/Osceola for any period or
periods through and including September 30, 1999, has been made and is reflected
on the September 30, 1999 financial statements included in the First
National/Osceola Financial Statements.
(iv) Deferred taxes of First National/Osceola have been
provided for in the First National/Osceola Financial Statements in accordance
with GAAP, subject in the case of interim financial statements to normal
recurring year-end adjustments.
(v) All taxes which First National/Osceola is required by
law to withhold or to collect for payment have been duly withheld and collected,
and have been paid to the proper governmental entity or are being withheld by
First National/Osceola, except where the failure of any of which, individually
or in the aggregate, would not have a material adverse effect on the Condition
of First National/Osceola.
(j) Allowance for Loan or Credit Losses. The allowance for
loan or credit losses ("Allowance") shown on the balance sheet of First
National/Osceola as of September 30, 1999 included in the First National/Osceola
Financial Statements was, and the Allowance shown on the balance sheets of First
National/Osceola as of dates subsequent to the execution of this Agreement will
to the Knowledge of First National/Osceola be, in each case as of the dates
thereof, adequate to provide for losses relating to or inherent in the loan and
lease portfolios (including accrued interest receivable) of First
National/Osceola and other extensions of credit (including letters of credit and
commitments to make loans or extend credit) by First National/Osceola, except
where the failure of the Allowance to be so adequate would not have a material
adverse effect on the Condition of First National/Osceola.
(k) Properties; Insurance. First National/Osceola has good and
marketable title free and clear of all material liens, encumbrances, charges,
defaults or equities of whatever character to all of the properties and assets,
tangible or intangible, reflected in the First National/Osceola Financial
Statements, except for liens disclosed in such Financial Statements, those
arising in the Ordinary Course of Business after September 30, 1999 or liens
which are not reasonably likely to have, individually or in the aggregate, a
material adverse effect on the Condition of First National/Osceola. All
buildings, and all fixtures, equipment and other property and assets which are
material to its business and which are held under leases or subleases by First
National/Osceola are held under valid instruments enforceable in accordance with
their respective terms (except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
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creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceedings may be brought). The real property
owned and used as facilities by First National/Osceola has never been used for
the handling, treatment, storage or disposal of any hazardous or toxic substance
as defined under any applicable state or federal law. All policies of fire,
theft, liability and other insurance maintained with respect to the assets or
businesses of First National/Osceola, and the fidelity bonds in effect as to
which First National/Osceola is a named insured, are described in Schedule 3(k)
hereto. Substantially all of First National/Osceola's equipment in regular use
has been well maintained and is in good and serviceable condition, reasonable
wear and tear excepted.
(1) Material Contracts. Neither First National/Osceola nor any
of its assets, businesses or operations as of the date of this Agreement is a
party to, or is bound or affected by, or receives benefits under, any of the
following (whether written or oral and excluding agreements for the extension of
credit by First National/Osceola made in the Ordinary Course of Business): (i)
any employment agreement or understanding (including any understandings or
obligations with respect to severance or termination pay liabilities or fringe
benefits) with any present or former officer, director, or employee, including
in any such person's capacity as a consultant (other than those which are
terminable at will without any further amount being payable thereunder), (ii)
any other agreement with any officer, director, employee, or affiliate, (iii)
any agreement with any labor union, (iv) any agreement which limits the ability
of First National/Osceola to compete in any line of business or which involves
any restriction of the geographical area in which First National/Osceola may
carry on its business (other than as may be required by law or applicable
regulatory authorities), or (v) any agreement, contract, arrangement or
commitment with annual payments aggregating $20,000 or more.
(m) Material Contract Defaults. First National/Osceola is not
in default, and has not received any written notice or has any Knowledge that
any other party is in default, in any material respect under any contract,
lease, sublease, license, franchise, permit, indenture, agreement, or mortgage
for borrowed money, or instrument of indebtedness (except, as to the foregoing,
extensions of credit by First National/Osceola in the Ordinary Course of
Business), and there has not occurred any event that with the lapse of time or
the giving of notice or both would constitute such a default.
(n) Compliance with Laws.
(i) First National/Osceola is in compliance in all
respects with all laws, regulations, reporting and licensing requirements and
orders applicable to its business or to its employees conducting its business,
with any Regulatory Agreements (as hereinafter defined) applicable to First
National/Osceola, and with its internal policies and procedures, except where
the breach or violation of any of which, individually or in the aggregate, would
not have a material adverse effect on the Condition of First National/Osceola.
(ii) First National/Osceola has not received any written
notification or communication from any Regulatory Authorities (A) asserting that
First National/Osceola is not in substantial compliance with any of the
statutes, regulations, or ordinances which such Regulatory Authority enforces
which as a result of such noncompliance would have a material adverse effect on
the Condition of First National/Osceola, (B) threatening to revoke any license,
franchise, permit or governmental authorization which is material to the
Condition of First National/Osceola, (C) requiring or threatening to require
First National/Osceola, or indicating that First National/Osceola may be
required, to enter into or be subject to a cease and desist order, agreement,
memorandum of understanding or any other agreement or undertaking (or to cause
its Board of Directors to adopt any resolutions) restricting or limiting or
purporting to restrict or limit in any manner the operations of
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First National/Osceola, including, without limitation, any restriction on the
payment of dividends, or (D) directing, restricting or limiting, or purporting
to direct, restrict or limit in any manner the operations of First
National/Osceola, including, without limitation, any restriction on the payment
of dividends (any such notice, communication, order, agreement, memorandum,
resolutions or undertaking described in this sentence herein referred to as a
"Regulatory Agreement"). First National/Osceola has not consented to, entered
into, agreed to enter into, or been made subject to, any Regulatory Agreement.
First National/Osceola has no Knowledge that any Regulatory Authority is
considering imposing on First National/Osceola any Regulatory Agreement.
(o) Employee Benefit Plans.
(i) The First National/Osceola Disclosure Schedule lists
every pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus or other incentive
plan, any other written or unwritten employee program, arrangement, agreement or
understanding, whether arrived at through collective bargaining or otherwise,
any medical, vision, dental or other health plan, any life insurance plan, any
golden parachute or other executive compensation plan, or any other employee
benefit plan or fringe benefit plan, including, without limitation, any
"employee benefit plan" as that term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") (a "Benefit Plan"
or, collectively, "Benefit Plans"), currently or expected to be adopted,
maintained by, sponsored in whole or in part by, or contributed to by First
National/Osceola or any ERISA Affiliate (as herein defined) for the benefit of
its employees, retirees, dependents, spouses, directors, independent contractors
or other beneficiaries and under which any of its employees, retirees,
dependents, spouses, directors, independent contractors or other beneficiaries
are eligible to participate (collectively, the "First National/Osceola Benefit
Plans"). No First National/Osceola Benefit Plan is or has been a multi-employer
plan within the meaning of Section 3(37) and Section 4001(a)(3) of ERISA. For
purposes of this Section 4(o), the term "ERISA Affiliate" means each trade or
business (whether or not incorporated) which together with First
National/Osceola is treated as a single employer under Section 414(b), (c), (m)
or (o) of the Internal Revenue Code.
(ii) True, correct and complete copies of all written
First National/Osceola Benefit Plans and descriptions of all unwritten First
National/Osceola Benefit Plans listed in the First National/Osceola Disclosure
Schedule and all trust agreements or other funding arrangements, including
insurance contracts, all amendments thereto and, where applicable, with respect
to any such plans or plan amendments, all determination letters, rulings,
opinion letters, information letters, or advisory opinions issued by the IRS or
the United States Department of Labor after December 31, 1974, annual reports or
returns, audited or unaudited financial statements, actuarial valuations, and
summary annual reports for the most recent three plan years, the most recent
summary plan descriptions and any material modifications thereto, have
previously been delivered to CBF or will be attached to the First
National/Osceola Disclosure Schedule.
(iii) All the First National/Osceola Benefit Plans and the
related trusts are in material compliance with, and have been administered in
material compliance with, the provisions of ERISA, the provisions of the
Internal Revenue Code and all other applicable laws, rules and regulations and
collective bargaining agreements. Any required governmental approvals for the
First National/Osceola Benefit Plans have been obtained, including, but not
limited to, favorable determination letters on the qualification of the ERISA
Plans and tax exemption of related trusts, as applicable, under the Internal
Revenue Code, and all such governmental approvals continue in full force and
effect. To the Knowledge of First National/Osceola, neither First
National/Osceola nor any administrator or fiduciary of any First
National/Osceola Benefit Plan or agent or delegate of any of the foregoing has
engaged in any transaction or acted or failed to act in any manner which could
subject First National/Osceola, CBF or any affiliate thereof to any direct or
indirect liability for a
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breach of any fiduciary, co-fiduciary or other duty under ERISA. To the
Knowledge of First National/Osceola, no oral or written representation or
communication with respect to any aspect of the First National/Osceola Benefit
Plans has been made to employees of First National/Osceola prior to the
Effective Time of the Merger which is not in accordance with the written or
otherwise pre-existing terms and provisions of such First National/Osceola
Benefit Plans in effect at the time of such communication. There are no
unresolved claims or disputes under the terms of, or in connection with, the
First National/Osceola Benefit Plans and no action, legal or otherwise, has been
commenced with respect to any claim under the terms of, or in connection with,
the First National/Osceola Benefit Plans.
(iv) To the Knowledge of First National/Osceola, no "party
in interest" (as defined in Section 3(14) of ERISA) or "disqualified person" (as
defined in Section 4975(e)(2) of the Internal Revenue Code) of any First
National/Osceola Benefit Plan has engaged in any "prohibited transaction"
(within the meaning of Section 4975(c) of the Internal Revenue Code or Section
406 of ERISA). There has been no (A) "reportable event" (as defined in Section
4043 of ERISA), or event described in Section 4062(e) or Section 4063(a) of
ERISA, or (B) termination or partial termination, withdrawal or partial
withdrawal with respect to any of the ERISA Plans which: (1) First
National/Osceola maintains or contributes to or has maintained or contributed to
or was required to maintain or contribute to for the benefit of employees of
First National/Osceola; or (2) which has been maintained or contributed to or
was required to be maintained or contributed to by any member of a controlled
group of trades or business as defined in ERISA Section 4001(a)(14) which has,
since January 1, 1975, included First National/Osceola.
(v) For any given ERISA Plan relating to First
National/Osceola, all assets of such plan are carried at their fair market
value, to the extent required by the plan document and applicable law, and the
fair market value of such plan's assets equals or exceeds the present value of
all benefits (whether vested or not) accrued to date by all present or former
participants in such plan. No First National/Osceola Benefit Plan is subject to
the rules of the PBGC.
(vi) As of the Effective Time, First National/Osceola will
not have any material current or future liability under any First
National/Osceola Benefit Plan that was not reflected in the First
National/Osceola Financial Statements.
(vii) No First National/Osceola Benefit Plan provides for
welfare benefits (as defined in ERISA Section 3(1)) to employees after
retirement other than as may be required by Section 601 et seq. of ERISA.
(viii) Each First National/Osceola Benefit Plan may be
terminated by the Surviving Bank in its sole discretion on or after the Closing
Date without liability of any kind or description arising from either such
termination or any action attributable to the Surviving Bank.
(ix) The execution of, or performance of the transactions
contemplated by, this Agreement will not create, accelerate or increase any
obligations under the First National/Osceola Benefit Plans, and will not require
or cause to be payable any payment which is or would be an "excess parachute
payment" under Section 28OG of the Internal Revenue Code.
(p) Legal Proceedings. There are no actions, suits or
proceedings instituted or pending or, to the Knowledge of First
National/Osceola, threatened (or unasserted but considered probable of assertion
and which if asserted would have at least a reasonable probability of an
unfavorable outcome) against First National/Osceola, or against any property,
asset, interest or right of First National/Osceola, that have a reasonable
probability either individually or in the aggregate of having a material adverse
effect on the Condition of First National/Osceola.
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(q) Absence of Certain Changes or Events. Since September 30,
1999, the businesses of First National/Osceola has been operated only in the
ordinary course consistent with past practices and since such date there has not
been, occurred or arisen: (i) any damage, destruction, loss or casualty whether
or not covered by insurance which has had or is reasonably likely to have a
material adverse effect on the Condition of First National/Osceola; (ii) any
declaration, setting aside or payment of any dividend or distribution (whether
in cash, stock or property) in respect of the First National/Osceola Shares or
any redemption or other acquisition of the First National/Osceola Shares by
First National/Osceola or any split, combination or reclassification of First
National/Osceola Shares declared or made; (iii) any extraordinary losses
required by GAAP to be disclosed as such that have been suffered and not
adequately reserved against, whether or not in the Ordinary Course of Business;
(iv) any material assets mortgaged, pledged or subjected to any lien, charge or
other encumbrance; (v) any agreement to do any of the foregoing; or (vi) any
other event, development or condition of any character including any change in
results of operations, financial condition, method of accounting or accounting
practices, nature of business, or manner of conducting the business of First
National/Osceola that has had, or is reasonably likely to have, a material
adverse effect on the Condition of First National/Osceola.
(r) Reports. Since September 30, 1999, First National/Osceola
has filed all reports and statements, together with any amendments required to
be made with respect thereto, that it was required to file with any Regulatory
Authority. Each such report and statement, including the financial statements,
exhibits and schedules thereto, at the time of filing thereof complied in all
material respects with the laws and rules and regulations applicable to it and
did not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements made, in the light of the
circumstances under which they were made, not misleading.
(s) Statements True and Correct. No representation or warranty
made by First National/Osceola in this Agreement, no written statement or
certificate included in an Exhibit or Schedule by First National/Osceola in
connection with this Agreement, and no written statement or certificate to be
furnished by First National/Osceola to CBF pursuant to this Agreement contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements made, in the light of the circumstances under
which they were made, not misleading. None of the information supplied or to be
supplied by First National/Osceola for inclusion in the definitive proxy
materials to be mailed to First National/Osceola shareholders in connection with
the Special First National/Osceola Meeting (as defined in Section 5(b)(iii)), or
in any other documents to be filed with any Regulatory Authority in connection
with the transactions contemplated hereby, will at the respective time such
documents are filed fail to comply in all material respects with the laws and
rules and regulations applicable to First National/Osceola, contain any untrue
statement of a material fact, or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. All documents that First National/Osceola
is responsible for filing with any Regulatory Authority in connection with the
Merger will comply as to form in all material respects with the provisions of
applicable law.
(t) Environmental Matters.
(i) To the Knowledge of First National/Osceola, the
Participation Facilities, and the Loan Properties (each as hereinafter defined)
are, and have been, in compliance with all applicable laws, rules, regulations,
standards and requirements of the United States Environmental Protection Agency
("EPA") and of state and local agencies with jurisdiction over pollution or
protection of the environment, except for violations which, either individually
or in the aggregate, do not or would not result in a material adverse effect on
the Condition of First National/Osceola.
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(ii) To the Knowledge of First National/Osceola, there is
no suit, claim, action or proceeding, pending or threatened, before any court,
governmental agency or board or other forum in which First National/Osceola or
any Participation Facility has been or, with respect to threatened proceedings,
may be, named as a defendant (A) for alleged noncompliance (including by any
predecessor), with any environmental law, rule or regulation or (B) relating to
the release into the environment of any Hazardous Material (as hereinafter
defined) or oil whether or not occurring at or on a site owned, leased or
operated by First National/Osceola or any Participation Facility except as would
not, either individually or in the aggregate, result in a material adverse
effect on the Condition of First National/Osceola.
(iii) To the Knowledge of First National/Osceola, there is
no suit, claim, action or proceeding, pending or threatened, before any court,
governmental agency or board or other forum in which any Loan Property has been
or, with respect to threatened proceedings, may be, named as a defendant (A) for
alleged noncompliance (including by any predecessor) with any environmental law,
rule or regulation or (B) relating to the release into the environment of any
Hazardous Material or oil whether or not occurring at or on a site owned, leased
or operated by a Loan Property, except where such noncompliance or release does
not or would not result, either individually or in the aggregate, in a material
adverse effect on the Condition of First National/Osceola.
(iv) To the Knowledge of First National/Osceola, there is
no reasonable basis for any suit, claim, action or proceeding as described in
subsection (ii) or (iii) of this Section 3(t) except as would not, individually
or in the aggregate, have a material adverse effect on the Condition of First
National/Osceola.
(v) During the period of (A) First National/Osceola's
ownership or operation of any of its current properties, (B) First
National/Osceola's participation in the management of any Participation
Facilities, or (C) First National/Osceola's holding of a Security Interest in a
Loan Property, to the Knowledge of First National/Osceola, there has been no
release of Hazardous Material or oil in, on, under or affecting such properties,
except where such release does not or would not result, either individually or
in the aggregate, in a material adverse effect on the Condition of First
National/Osceola. Prior to the period of (A) First National/Osceola's ownership
or operation of any of its current properties, (B) First National/Osceola's
participation in the management of any Participation Facility, or (C) First
National/Osceola holding of a Security Interest in a Loan Property, to the
Knowledge of First National/Osceola, there was no release of Hazardous Material
or oil in, on, under or affecting any such property, Participation Facility or
Loan Property, except where such release does not or would not result, either
individually or in the aggregate, in a material adverse effect on the condition
of First National/Osceola.
(vi) The following definitions apply for purposes of this
Section 3(t): (A) "Loan Property" means any real property in which First
National/Osceola holds a Security Interest and, where required by the context,
said term means the owner or operator of such property; (B) "Participation
Facility" means any facility in which First National/Osceola participates in the
management and where required by the context, said term means the owner or
operator of such property; and (C) "Hazardous Material" means any pollutant,
contaminant, or hazardous substance under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss.9601 et seq. or any
similar state law.
(u) Labor Matters. First National/Osceola is not a party to,
or bound by, any collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is it the subject of
any material proceeding asserting that it has committed an unfair labor practice
or seeking to compel it to bargain with any labor organization as to wages or
conditions of employment nor is there any strike or other labor dispute
involving it pending or,
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to its Knowledge, threatened, any of which would have, individually or in the
aggregate, a material adverse effect on the Condition of First National/Osceola.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CBF
Section 4.1 Representations and Warranties of CBF. CBF represents and
warrants to First National/Osceola that the statements contained in this Article
IV are correct and complete as of the date of this Agreement and shall be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Article IV), except (i) representations and warranties which are confined to a
specified date shall speak only as of such date, (ii) as expressly contemplated
by this Agreement, or (iii) as set forth in the disclosure schedule prepared by
CBF and delivered to First National/Osceola prior to the date of this Agreement
(the "CBF Disclosure Schedule"). The CBF Disclosure Schedule has been arranged
in paragraphs corresponding to the numbered and lettered paragraphs contained in
this Article IV.
(a) Organization, Qualification, and Corporate Power. CBF is a
corporation duly organized, validly existing, and in good standing under the
laws of Florida. CBF is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction in which the nature of its business
or the ownership or leasing of its properties requires such qualification except
where the lack of such qualification would not have a material adverse effect on
its Condition. CBF has full corporate power and authority to carry on the
business in which it is engaged and to own and use the properties owned and used
by it. True and complete copies of the Articles of Incorporation and the Bylaws
of CBF are attached hereto as Schedule 4(a). CBF has in effect all federal,
state, local and foreign governmental, regulatory and other authorizations,
permits and licenses necessary for it to own or lease its properties and assets
and to carry on its business as now conducted, the absence of which,
individually or in the aggregate, would have a material adverse effect on the
Condition of CBF on a consolidated basis.
As of the Effective Time of the Merger, FINB (i) will be
an interim national banking association duly organized, validly existing and in
good standing under the laws of the United States (ii) will have the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as proposed to be conducted pursuant to this Agreement,
and (iii) will be licensed or qualified to do business in each jurisdiction
which the nature of the business conducted or to be conducted by FINB, or the
character or location or the properties and assets owned or leased by FINB, make
such licensing or qualification necessary, except where the failure to be so
licensed or qualified (or steps necessary to cure such failure) would not have a
material adverse effect on the Condition of CBF on a consolidated basis. FINB,
as of the Effective Time of the Merger, will have in effect all federal, state,
local and foreign governmental, regulatory or other authorizations, permits and
licenses necessary for it to own or lease its properties and assets and to carry
on its business as proposed to be conducted, the absence of which, either
individually or in the aggregate, would have a material adverse effect on the
Condition of CBF on a consolidated basis.
(b) Capitalization. The authorized capital stock of CBF
consists of (i) 20,000,000 CBF Shares, of which one CBF Shares is issued and
outstanding on the date of this Agreement, and (ii) 5,000,000 shares of
preferred stock, $.01 par value, none of which are issued and outstanding on the
date of this Agreement. There are no other classes of capital stock of CBF
authorized. CBF holds no CBF Shares as treasury stock. All of the issued and
outstanding CBF Shares have been duly authorized and are validly issued, fully
paid and nonassessable. None of the
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outstanding CBF Shares has been issued in violation of any preemptive rights of
the current or past stockholders of CBF. There are no outstanding or authorized
options, warrants, rights, contracts, calls, puts, rights to subscribe,
conversion rights, or other agreements or commitments to which CBF is a party or
which are binding upon CBF or, to the Knowledge of CBF, any other party
providing for the issuance, voting, transfer, disposition, or acquisition of any
of the capital stock of CBF. There are no outstanding or authorized stock
appreciation, phantom stock or similar rights with respect to CBF.
(c) CBF Subsidiaries. Except for FINB (and other interim
banking associations organized to facilitate consummation of the merger referred
to in Sections 6(a)(xiii) and 6(b)(xi)), which at the Effective Time of the
Merger will be organized as a wholly-owned subsidiary of CBF, CBF has no
Subsidiary or Subsidiaries.
(d) Authorization of Transaction. CBF has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided, however, that
CBF cannot consummate the Merger unless and until all requisite approvals are
received from the Regulatory Authorities. Subject to the foregoing sentence, (i)
this Agreement has been duly executed and delivered by CBF and this Agreement
constitutes a valid and binding agreement of CBF, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies, (ii) the
performance by CBF of its obligations under this Agreement and the consummation
of the Merger and the other transactions provided for under this Agreement have
been or will be duly and validly authorized by all necessary corporate action on
the part of CBF, and (iii) the Board of Directors of CBF has approved the
execution, delivery and performance of this Agreement and the consummation of
the Merger and the other transactions provided for under this Agreement. Other
than to or from the Regulatory Authorities or to or from the IRS or the PBGC
with respect to any employee benefit plans, CBF does not need to give any notice
to, make any filing with, or obtain any authorization, consent or approval of
any government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a material adverse effect on the Condition of CBF on a consolidated basis.
(e) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) subject to the receipt of the approvals contemplated in Section 4(d)
above, violate any statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge, or other restriction of any government,
governmental agency, or court to which CBF is subject or any provision of the
Articles of Incorporation or Bylaws of CBF or (ii) with the passing of time or
the giving of notice or both, conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
contract, lease, sublease, license, franchise, permit, indenture, agreement or
mortgage for borrowed money, instrument of indebtedness, Security Interest, or
other obligation to which CBF is a party or by which it is bound or to which any
of its assets is subject (or result in the imposition of any Security Interest
upon any of its assets) except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would not have a material adverse effect on the Condition
of CBF on a consolidated basis.
(f) Statements True and Correct. No representation or warranty
made by CBF in this Agreement, no written statement or certificate included in
an Exhibit or Schedule by CBF in connection with this Agreement, and no written
statement or certificate to be furnished by CBF to First National/Osceola
pursuant to this Agreement contains any untrue statement of material fact or
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omits to state a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading. None of
the information supplied or to be supplied by CBF for inclusion in the
definitive proxy materials to be mailed to First National/Osceola shareholders
in connection with the Special First National/Osceola Meeting (as defined in
Section 5(b)(iii)), or in any other documents to be filed with any Regulatory
Authority in connection with the transactions contemplated hereby, will at the
respective time such documents are filed fail to comply in all material respects
with the laws and rules and regulations applicable to CBF, contain any untrue
statement of a material fact, or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. All documents that CBF is responsible for
filing with any Regulatory Authority in connection with the Merger will comply
as to form in all material respects with the provisions of applicable law.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Covenants. Except as otherwise set forth in the Disclosure
Schedules, the Parties agree as follows with respect to the period from and
after the execution of this Agreement until the earlier of the consummation of
the transactions contemplated by this Agreement or the termination of this
Agreement:
(a) Current Information. During the period from the date of
this Agreement to the Effective Time of the Merger, each Party shall, and shall
cause its representatives to, confer on a regular and frequent basis with
representatives of the other. Within twenty (20) days after the end of each
calendar month beginning after the date of this Agreement, each of First
National/Osceola and CBF shall deliver to the other copies of their respective
unaudited balance sheets and statements of income, and any other financial or
statistical information submitted by management to the Board of Directors of
First National/Osceola or CBF (other than information provided to a Board of
Directors specifically in connection with its consideration of the Merger, this
Agreement, and the transactions contemplated hereby) for or in the preceding
fiscal month. All such financial statements shall be prepared in accordance with
the books and records of such Party, shall be complete and accurate in all
material respects, shall present fairly the financial position and the results
of operations of that Party as of and for the periods indicated, and shall be
prepared in accordance with GAAP, subject to normal recurring year-end
adjustments and the absence of certain footnote information in the unaudited
statements.
(b) Regulatory Matters and Approvals.
(i) Bank Regulatory Matters. CBF and First
National/Osceola shall cause to be promptly prepared and filed with the FRB, the
FDIC, and the OCC, applications for their approval of the Merger and with any
other Regulatory Authority having jurisdiction any other applications for
approvals or Consents which may be necessary for the consummation of the Merger.
The Parties shall provide copies of all such applications and notices to the
others for review prior to submission or filing with the appropriate Regulatory
Authorities. Each Party agrees to promptly review and provide any comments on
such applications and notices to the others. Each Party shall use its best
efforts to take or cause to be taken all actions necessary for such applications
and notices to be approved and shall provide the others with copies of all
correspondence and notices to or from such agencies concerning such applications
and notices. No Consent obtained which is necessary to consummate the
transactions contemplated by this Agreement shall be conditioned or restricted
in a manner which in the reasonable judgment of a Party would (A) unduly impair
or restrict the operations, or would have a material adverse effect on the
Condition, of CBF or the Surviving Bank,
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or (B) render consummation of the Merger unduly burdensome; provided, that such
Party has used its reasonable efforts (it being understood that such reasonable
efforts shall not include the threatening or commencement of any litigation) to
cause such conditions or restrictions to be removed or modified as appropriate.
(ii) Definitive Proxy Materials. First National/Osceola
shall prepare a proxy statement which shall consist of the First
National/Osceola definitive proxy materials relating to the Special First
National/Osceola Meeting (the "Proxy Statement"). The Proxy Statement shall
contain the affirmative recommendation of the Board of Directors of First
National/Osceola in favor of the adoption of this Agreement and the approval of
the Merger. CBF shall provide to First National/Osceola such information and
assistance in connection with the preparation of the Proxy Statement as First
National/Osceola may reasonably request. First National/Osceola shall not be
liable for any untrue statement of a material fact or omission to state a
material fact in the Proxy Statement made in reliance upon, or in conformity
with, information furnished to First National/Osceola by CBF for use therein. In
connection with the Special First National/Osceola Meeting, the Parties shall
file the proxy statement with such Regulatory Agencies as may be required by law
in order for such materials to be furnished to First National/Osceola
shareholders in connection with such meeting.
(iii) Shareholder Approvals. First National/Osceola shall
call a special meeting of its shareholders (the "Special First National/Osceola
Meeting") and mail to them the Proxy Statement (as soon as reasonably
practicable following a determination by First National/Osceola and CBF that
such special meeting should be called) in order that First National/Osceola
shareholders may consider and vote upon the adoption of this Agreement and the
approval of the Merger in accordance with applicable law. CBF, as sole
shareholder of FINB, agrees to vote in favor of adoption of this Agreement and
approval of the Merger.
(iv) Securities Act Matters. CBF will prepare and file
with the SEC a Registration Statement under the Securities Act in connection
with the CBF Shares to be issued to First National/Osceola shareholders in the
Merger. First National/Osceola and CBF shall each promptly furnish all
information concerning it and the holders of its outstanding shares as the other
may reasonably request from time to time in connection with the preparation of
the Registration Statement. The Parties shall use their reasonable efforts to
cause the Registration Statement to become effective under the Securities Act as
soon as reasonably practicable after the filing thereof and to take any action
required to be taken under applicable state, Blue Sky or securities laws in
connection with the issuance of the CBF Shares upon consummation of the Merger.
(v) Other Governmental Matters. Subject to the last
sentence of Section 5(b)(i), each of the Parties shall take any additional
action that may be necessary, proper, or advisable in connection with any other
notice to, filings with, and authorizations, consents, and approvals of
governments and governmental agencies that it may be required to give, make or
obtain in connection with the transactions contemplated by this Agreement.
(c) Tax Opinion. On or before the date the Proxy Statement is
mailed to First National/Osceola shareholders, First National/Osceola and CBF
shall each use all reasonable efforts to obtain a written opinion from an
accounting or law firm selected by First National/Osceola and CBF, to the effect
that the exchange of First National/Osceola Shares, to the extent exchanged for
CBF Shares as contemplated herein, shall not give rise to gain or loss to the
holders of such First National/Osceola Shares, or gain or loss to CBF with
respect to such exchange (except to the extent of any cash paid in lieu of
fractional shares), and accordingly, the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
(the "Tax
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Opinion"). The Tax Opinion shall be reasonably satisfactory to each of First
National/Osceola and CBF in form and substance.
(d) Conduct of Business Prior to the Effective Time of the
Merger. During the period from the date of this Agreement to the Effective Time
of the Merger, except as set forth in the First National/Osceola or CBF
Disclosure Schedules, or with the prior written consent of the other Parties, or
as expressly contemplated or permitted by this Agreement, each of First
National/Osceola and CBF shall (i) conduct its business in, and only in, the
usual, regular and ordinary course consistent with past practices, (ii) use its
reasonable best efforts to maintain and preserve intact its business
organization, employees and advantageous business relationships and retain the
services of its officers and key employees, and (iii) take no action which would
materially adversely affect or delay the ability of any Party to obtain any
necessary approvals of any Regulatory Authority or other governmental authority
required for the transactions contemplated hereby or to perform its covenants
and agreements under this Agreement.
(e) Forbearance. During the period from the date of this
Agreement to the Effective Time of the Merger, except as set forth in the First
National/Osceola or CBF Disclosure Schedules, or except as expressly
contemplated or permitted by this Agreement, no Party shall, or permit its
Subsidiaries to, without the prior written consent of the other Parties:
(i) Other than in the Ordinary Course of Business, incur
any indebtedness for borrowed money (other than short-term indebtedness incurred
to refinance short-term indebtedness; it being understood and agreed that
incurrence of indebtedness in the Ordinary Course of Business shall include,
without limitation, the creation of deposit liabilities, purchases of federal
funds, sales of certificates of deposit and entering into repurchase
agreements), assume, guarantee, endorse or otherwise as an accommodation become
responsible for the obligations of any other individual, corporation or other
entity, or make any loan or advance other than in the Ordinary Course of
Business;
(ii) Adjust, split, combine or reclassify any capital
stock; make, declare or pay any dividend (except in accordance with past
practice) or make any other distribution on, or directly or indirectly 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, grant any stock options or stock appreciation rights or grant any
individual, corporation or other entity any right to acquire any shares of its
capital stock;
(iii) Sell, transfer, mortgage, encumber or otherwise
dispose of any of its material properties or assets to any individual,
corporation or other entity, or cancel, release or assign any material
indebtedness to any such person or any claims held by any such person, except
(A) in the Ordinary Course of Business, or (B) as set forth in a Disclosure
Schedule pursuant to contracts or agreements in force at the date of this
Agreement;
(iv) Except for transactions in the Ordinary Course of
Business, make any material investment in, either by purchase of stock or
securities, contributions to capital, property transfers, or purchase of
property or assets, any other individual, corporation or other entity;
(v) Except for transactions in the Ordinary Course of
Business, enter into or terminate any material contract or agreement, or make
any change in any of its material leases or contracts, other than renewals of
contracts and leases without material adverse changes of terms;
(vi) Increase in any material manner the compensation or
fringe benefits of any of its employees or pay any bonus or pension or
retirement allowance not required by any
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existing plan or agreement to any such employees, or become a party to, amend or
commit itself to any pension, retirement, profit-sharing or welfare benefit plan
or agreement or employment agreement with or for the benefit of any employee,
other than in the Ordinary Course of Business (except that First
National/Osceola may amend the stock option plans pursuant to which the First
National/Osceola Options were issued to provide that the First National/Osceola
Options shall not terminate as a result of the Merger); with the understanding
that entering into any new employment contracts, or renewing or amending any
existing employment contracts, shall be deemed outside the Ordinary Course of
Business;
(vii) Amend its Articles of Incorporation, Articles of
Association, or its bylaws;
(viii) Enter into any new line of business;
(ix) Change its lending, investment, asset/liability
management or other material banking policies in any respect which is material,
including without limitation, policies and procedures relating to calculating
and funding the Allowance;
(x) Incur or commit to any capital expenditure or any
obligations or liabilities in connection therewith other than capital
expenditures and obligations or liabilities incurred or committed to in the
Ordinary Course of Business;
(xi) Change its methods of accounting in effect at
December 31, 1998, except as required by generally accepted accounting
principles, or its fiscal year; or
(xii) Agree to, or make any commitment to, take any of the
actions prohibited by this Section 5(e).
(f) Issuance of Securities. Except as set forth in a
Disclosure Schedule or as contemplated by this Agreement, no Party shall or
shall permit any of its Subsidiaries to issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock of
any class, any voting debt or any securities convertible into or exercisable for
or any rights, warrants or options to acquire, any such shares or voting debt,
or enter into any agreement with respect to any of the foregoing, other than (i)
the issuance of First National/Osceola Shares, pursuant to outstanding First
National/Osceola Options, in each case as in effect on the date of this
Agreement and in each case in accordance with their present terms; (ii) the
issuance of CBF Shares pursuant to outstanding CBF Options or CBF Warrants, in
each case as in effect on the date of this Agreement and in each case in
accordance with their present terms; (iii) issuances by a Subsidiary of its
capital stock to its parent; and (iv) the issuance by a Party of any shares of
its capital stock in a transaction approved by the Parties pursuant to Section
5(g).
(g) No Acquisitions. Other than acquisitions which may be
mutually agreed upon in writing by the Parties, no Party shall or shall permit
any of its Subsidiaries to acquire or agree to acquire, by merging or
consolidation with or by purchasing a substantial equity interest in, or by
purchasing a substantial portion of the assets, or assuming a substantial
portion of the liabilities of, or by any other manner, any business or any
corporation, partnership, association or other business organization or division
thereof or otherwise acquire or agree to acquire any assets in each case which
are material, individually or in the aggregate, to such Party and its
Subsidiaries taken as a whole; provided, however, that the foregoing shall not
prohibit (i) internal reorganizations, consolidations or dissolutions involving
only existing Subsidiaries, (ii) foreclosure and other acquisitions related to
previously contracted debt, in each case in the Ordinary Course of Business,
(iii) acquisitions of control by First National/Osceola in its fiduciary
capacity, (iv) investments made
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by small business investment corporations, acquisitions of financial assets and
merchant banking activities, in each case in the Ordinary Course of Business, or
(v) the creation of new Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement.
(h) Other Actions. No Party shall or shall permit any of its
Subsidiaries to take any action that, or fail to take any action the failure of
which, results in any of its representations and warranties set forth in this
Agreement being or becoming untrue in any material respect, or in any of the
conditions set forth in this Agreement not being satisfied or in a violation of
any provision of this Agreement which would adversely affect the ability of any
of them to obtain any of the Regulatory Approvals, except in every case as may
be required by applicable law.
(i) Government Filings. Each Party shall file all reports,
applications and other documents required to be filed with the appropriate bank
regulators between the date hereof and the Effective Time of the Merger and
shall make available to the other Party copies of all such reports promptly
after the same are filed.
(j) Tax-Free Reorganization Treatment. No Party shall take or
cause to be taken any action, whether before or after the Effective Time of the
Merger, which would disqualify the Merger as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code.
(k) Full Access. Each Party shall and shall cause each of its
Subsidiaries to permit representatives of the others to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of such Party and its Subsidiaries, to all premises,
properties, books, records, contracts, tax records, and documents of or
pertaining to each of such Party and its Subsidiaries. Each Party agrees to
furnish any other Party and its advisers with such financial operating data and
other information with respect to its business, properties and employees as such
Party shall, from time to time, reasonably request. No investigation by a Party
shall affect the representations and warranties of any other Party to this
Agreement, and each such representation and warranty shall survive any such
investigation.
(1) Notice of Material Adverse Developments. Each Party shall
give prompt written notice to the other Parties of any material adverse effect
on its Condition, or any material adverse development affecting the assets,
liabilities, business, financial condition, operations, results of operations,
or future prospects of such Party and its Subsidiaries taken as a whole,
including without limitation (i) any material change in its business or
operations, (ii) any material complaints, investigations or hearings (or
communications indicating that the same may be contemplated) of any Regulatory
Authority, (iii) the institution or the threat of material litigation involving
such Party, or (iv) any event or condition that might be reasonably expected to
cause any of such Party's representations and warranties set forth herein not to
be true and correct in all material respects as of the Closing Date. Each Party
shall also give prompt written notice to the other Parties of any other material
adverse development affecting the ability of such Party to consummate the
transactions contemplated by this Agreement. Any such notices shall be
accompanied by copies of any and all pertinent documents, correspondence and
similar papers relevant to a complete understanding of such material adverse
development, which shall be promptly updated as necessary. CBF shall have 20
business days after First National/Osceola gives any written notice pursuant to
this Section 5(l) within which to exercise any right CBF may have to terminate
this Agreement pursuant to Section 7(a)(iv) below by reason of the material
adverse development, and First National/Osceola likewise shall have 20 business
days after CBF gives any written notice pursuant to this Section 5(l) within
which to exercise any right First National/Osceola may have to terminate this
Agreement pursuant to Section 7(a)(iii) below by reason of the material adverse
development. Unless one of the Parties terminates this Agreement within the
aforementioned period, the written notice of a material development shall be
deemed to have amended the Disclosure Schedule, to have
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qualified the representations and warranties contained herein, and to have cured
any misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of the material adverse development.
(m) Exclusivity. Except as specifically permitted or
contemplated by this Agreement, the Parties shall not (and shall not cause or
permit any of their Subsidiaries to) solicit, initiate, encourage, entertain,
consider, or participate in the negotiation, discussion or submission of any
proposal or offer from any person (other than a Party) relating to any (i)
liquidation, dissolution, or recapitalization, (ii) merger or consolidation,
(iii) acquisition or purchase of 25% or more of securities or assets, or (iv)
similar transaction or business combination involving any of the Parties and/or
its Subsidiaries, or their respective assets (the foregoing transactions
referred to in subclauses (i) through (iv), inclusive, are referred to in this
Agreement as an "Acquisition Proposal"); provided, however, that each Party
shall be entitled to entertain, consider, and participate in negotiations and
discussions regarding, and furnish any information with respect to, any effort
or attempt by any person to do or seek to do any of the foregoing to the extent
that the Board of Directors of such Party determines in good faith, based upon
the written advice of its legal counsel, that the failure to so consider or
participate in such negotiations or discussions would be inconsistent with the
fiduciary obligations of the directors of such Party to the shareholders of such
Party. The Party shall give all of the other Parties prompt notice of any such
negotiations and discussions. Each Party shall notify others immediately if any
person (other than a Party) makes any proposal, offer, inquiry, or contact with
respect to any Acquisition Proposal.
(n) Filings with the Offices. Upon the terms and subject to
the conditions of this Agreement, the Parties shall execute and file any and all
documents in connection with the Merger for filing with any Federal and state
offices.
(o) Press Releases. Each Party shall consult with each other
as to the form and substance of any press release or other public disclosure
materially related to this Agreement, the Merger or any other transaction
contemplated hereby; provided, however, that any Party may make any public
disclosure it believes in good faith is required by law or regulation.
(p) Agreements of Affiliates. First National/Osceola shall
deliver to CBF a letter identifying all persons whom First National/Osceola
believes to be, at the time the Merger is submitted to a vote of the First
National/Osceola shareholders, "affiliates" of First National/Osceola for
purposes of Rule 145 under the Securities Act. First National/Osceola shall use
its best efforts to cause each person who is identified as an "affiliate" in the
letter referred to above to deliver to CBF prior to the Effective Time of the
Merger a written agreement providing that each such person shall agree not to
sell, transfer or otherwise dispose of the CBF Shares to be received by such
person in the Merger, except in compliance with the applicable provisions of the
Securities Act and until such time as the financial results covering at least 30
days of combined operations of CBF and First National/Osceola have been
published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies. Prior to the Effective Time of the Merger, First
National/Osceola shall amend and supplement such letter and use its reasonable
best efforts to cause each additional person who is identified as an "affiliate"
to execute a written agreement as set forth in this Section 5(p).
(q) Miscellaneous Agreements and Consents. Subject to the
terms and conditions of this Agreement, each of the Parties hereto agrees to use
its respective best efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as expeditiously as reasonably
practicable, including, without limitation, using their respective reasonable
best efforts to lift or rescind any injunction or restraining order or other
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order adversely affecting the ability of the Parties to consummate the
transactions contemplated hereby. Each Party shall, and shall cause each of
their respective Subsidiaries to, use their reasonable best efforts to obtain
all approvals and Consents of all third parties and Regulatory Authorities
necessary or, in the reasonable opinion of any Party, desirable for the
consummation of the transactions contemplated by this Agreement. No Consent
obtained which is necessary to consummate the transactions contemplated by this
Agreement shall be conditioned or restricted in a manner which in the reasonable
judgment of a Party would (A) unduly impair or restrict the operations, or would
have a material adverse effect on the Condition, of CBF or the Surviving Bank,
or (B) render consummation of the Merger unduly burdensome; provided, that such
Party has used its reasonable efforts (it being understood that such reasonable
efforts shall not include the threatening or commencement of any litigation) to
cause such conditions or restrictions to be removed or modified as appropriate.
(r) Indemnification.
(i) After the Effective Time of the Merger, CBF shall
cause the Surviving Bank to indemnify, defend and hold harmless the present and
former officers, directors, employees and agents of First National/Osceola
(each, an "Indemnified Party") after the Effective Time of the Merger against
all losses, expenses, claims, damages or liabilities arising out of actions or
omissions occurring on or prior to the Effective Time of the Merger (including,
without limitation, the transactions contemplated by this Agreement) to the full
extent then permitted under, and in accordance with the terms and conditions of,
the Florida Business Corporation Act and by the Articles of Association and
Bylaws of First National/Osceola as in effect on the date hereof, including
provisions relating to advances of expenses incurred in the defense of any
action or suit. CBF shall cause the Surviving Bank to apply such rights of
indemnification in good faith and to the fullest extent permitted by applicable
law.
(ii) If the Surviving Bank or any of its successors or
assigns (A) shall consolidate with or merge into any other corporation or entity
and shall not be the continuing or surviving corporation or entity of such
consolidation or merger, or (B) shall transfer all or substantially all of its
properties and assets to any individual, corporation or other entity, then and
in each such case, CBF shall cause the Surviving Bank to cause proper provision
to be made so that the successors and assigns of the Surviving Bank shall assume
the obligations set forth in this Section 5(r).
(s) Fairness Opinions. On or before 10 days prior to the date
of the Proxy Statement, (i) First National/Osceola shall use all reasonable
efforts to obtain an opinion from a firm selected by it that the terms of the
Merger are fair to First National/Osceola shareholders from a financial point of
view (the "First National/Osceola Fairness Opinion"), and (ii) CBF shall have
the right to obtain an opinion from a firm selected by it that the terms of the
Merger are fair to CBF shareholders from a financial point of view (the "CBF
Fairness Opinion").
(t) Employee Benefit Plans. First National/Osceola and CBF
shall use their best efforts to coordinate the conversion of each First
National/Osceola Benefit Plan into similar plans of the Surviving Bank, to the
extent similar plans are maintained by the Surviving Bank, and to make available
for eligibility for First National/Osceola employees all benefit plans and
policies maintained by the Surviving Bank following the Effective Time of the
Merger with such employees receiving credit for past service with a Party prior
to the Effective Time of the Merger for purposes of eligibility for
participation, vesting, and years of service, under such benefit plans and
policies.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF FIRST NATIONAL/OSCEOLA AND CBF
Section 6.1 Conditions to Obligation to Close.
(a) Conditions to Obligation of CBF. The obligation of CBF to
consummate the transactions to be performed by it in connection with the Closing
are subject to satisfaction of the following conditions:
(i) This Agreement and the Merger shall have received the
requisite approval of the shareholders of First National/Osceola and the number
of Dissenting First National/Osceola Shares shall not exceed 5% of the number of
First National/Osceola Shares issued and outstanding immediately prior to the
Effective Time of the Merger;
(ii) The Parties shall have procured all approvals,
authorizations and Consents specified in Section 5(b) above and the Disclosure
Schedules, including but not limited to all necessary consents, authorizations
and approvals of Regulatory Authorities which, with respect to those from the
Regulatory Authorities, shall not contain provisions which (A) unduly impair or
restrict the operations, or would have a material adverse effect on the
Condition, of CBF or the Surviving Bank, or (B) render consummation of the
Merger unduly burdensome, in each case as determined in the reasonable
discretion of CBF;
(iii) The representations and warranties set forth in
Article III above shall be true and correct in all material respects at and as
of the Closing Date;
(iv) First National/Osceola shall have performed and
complied in all material respects with all its covenants required to be complied
with hereunder through the Closing;
(v) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge could (A) prevent consummation
of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right after the Effective Time of the
Merger of the Surviving Bank to own, operate, or control substantially all of
the assets and operations of First National/Osceola and/or CBF to own, operate,
or control substantially all of the assets and operations of the Surviving Bank
(and no such judgment, order, decree, stipulation, injunction, or charge shall
be in effect);
(vi) The shareholders' equity of First National/Osceola on
the last day of the calendar month immediately preceding the Closing Date, as
determined in accordance with GAAP before any adjustments required pursuant to
Statement of Financial Accounting Standards No. 115 ("FAS 115"), shall not be
less than the amount set forth in the September 30,1999 First National/Osceola
Financial Statements.
(vii) First National/Osceola shall have delivered to CBF a
certificate (without qualification as to knowledge or materiality or otherwise)
to the effect that each of the conditions specified above in Section 6(a)(i)
through (vi) is satisfied in all respects;
(viii) All actions to be taken by First National/Osceola
in connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments,
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30
and other documents required to effect the transactions contemplated hereby
shall be reasonably satisfactory in form and substance to CBF;
(ix) CBF shall have received the Tax Opinion in a form
reasonably satisfactory to CBF;
(x) CBF shall have received the CBF Fairness Opinion;
(xi) CBF shall have received a letter, dated as of the
Effective Time of the Merger, from an accounting firm selected by CBF and First
National/Osceola to the effect that the Merger will qualify for
pooling-of-interests accounting treatment if closed and consummated in
accordance with this Agreement; and
(xii) CBF shall close simultaneously with the Effective
Time of the Merger the acquisitions by CBF of First National Bank of Polk County
and Community National Bank of Pasco County.
CBF may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of First National/Osceola. The
obligations of First National/Osceola to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(i) This Agreement and the Merger shall have received the
requisite approval of the shareholders of First National/Osceola and the number
of Dissenting First National/Osceola Shares shall not exceed 5% of the number of
First National/Osceola Shares issued and outstanding immediately prior to the
Effective Time of the Merger;
(ii) The Parties shall have procured all of the third
party approvals, authorizations and consents specified in Section 5(b) above,
and the Disclosure Schedules, including but not limited to all necessary
consents, authorizations and approvals of Regulatory Authorities which, with
respect to those from the Regulatory Authorities, shall not contain provisions
which (A) unduly impair or restrict the operations, or would have a material
adverse effect on the Condition, of CBF or the Surviving Bank, or (B) render
consummation of the Merger unduly burdensome, in each case as determined in the
reasonable discretion of First National/Osceola;
(iii) The representations and warranties set forth in
Article IV above shall be true and correct in all material respects at and as of
the Closing Date;
(iv) CBF shall have performed and complied in all material
respects with all its covenants required to be complied with hereunder through
the Closing;
(v) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction wherein an unfavorable judgment,
order, decree, stipulation, injunction, or charge could (A) prevent consummation
of any of the transactions contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (C) affect adversely the right after the Effective Time of the
Merger of the Surviving Bank, to own, operate, or control substantially all of
the assets and operations of First National/Osceola (and no such judgment,
order, decree, stipulation, injunction or charge shall be in effect);
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(vi) CBF shall have delivered to First National/Osceola a
certificate (without qualification as to knowledge or materiality or otherwise)
to the effect that each of the conditions specified in Section 6(b)(i) through
(vii) is satisfied in all respects;
(vii) All actions to be taken by CBF in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
First National/Osceola;
(viii) First National/Osceola shall have received the Tax
Opinion in a form reasonably satisfactory to First National/Osceola; and
(ix) CBF shall close simultaneously with the Effective
Time of the Merger the acquisitions by CBF of First National Bank of Polk County
and Community National Bank of Pasco County.
First National/Osceola may waive any condition specified in this
Section 6(b) if it executes a writing so stating at or prior to the Closing.
ARTICLE VII
TERMINATION
Section 7.1 Termination.
(a) Termination of Agreement. Any of the Parties may terminate
this Agreement with the prior authorization of its Board of Directors (whether
before or after approval of its or any other Party's shareholders) as provided
below:
(i) The Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time of the Merger;
(ii) CBF may terminate this Agreement by giving written
notice to First National/Osceola at any time prior to the Effective Time of the
Merger in the event First National/Osceola is in breach, and First
National/Osceola may terminate this Agreement by giving written notice to CBF at
any time prior to the Effective Time of the Merger in the event CBF or FINB is
in breach, of any representation, warranty, or covenant contained in this
Agreement in any material respect. Each Party shall have the right to cure any
such breach, if such breach is capable of being cured, within 15 days after
receipt of written notice of such breach or within any such longer period
mutually agreed to in writing by the Parties hereto ("Cure Period"); provided,
however, that in no event shall the Cure Period extend beyond December 31, 2000;
(iii) If a material adverse development shall have
occurred affecting the Condition of CBF on a consolidated basis, First
National/Osceola may terminate this Agreement by giving written notice to CBF;
(iv) If a material adverse development shall have occurred
affecting the Condition of First National/Osceola, CBF may terminate this
Agreement by giving written notice to First National/Osceola;
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32
(v) First National/Osceola and CBF each may terminate this
Agreement by giving written notice to the other Party at any time after (i) the
First National/Osceola Special Meeting in the event this Agreement or the Merger
fails to receive the requisite First National/Osceola shareholder approval, or
(ii) the denial, and any final appeal or rehearing thereof (or if any denial by
such authority is not appealed within the time limit for appeal), of any
approval from a Regulatory Authority necessary to permit the Parties to
consummate the Merger and the transactions contemplated by this Agreement or if
any Consent shall be conditioned or restricted in the manner provided in the
last sentence of Section 5(b)(i); and
(vi) Any Party may terminate this Agreement by giving
written notice to the other Parties at any time after December 31, 2000 if the
Effective Time of the Merger has not yet then occurred and such termination was
approved by a two-thirds vote of such Party's full Board of Directors.
(b) Effect of Termination. If any Party terminates this
Agreement pursuant to Section 7(a) above, all obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Section 5(k) above, and the expense
provisions in 8(k) below, shall survive any such termination.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Miscellaneous.
(a) Survival. None of the representations, warranties, and
covenants of the Parties (other than the provisions in Article II above
concerning issuance of CBF Shares and the provisions in Section 5(r) above
concerning insurance and indemnification) shall survive the Effective Time of
the Merger.
(b) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns; provided, however, that (i) the
provisions in Article II above concerning issuance of CBF Shares are intended
for the benefit of First National/Osceola shareholders and (ii) the provisions
in Section 5(r) above concerning insurance and indemnification are intended for
the benefit of the individuals specified and their respective legal
representatives.
(c) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, that may have related in any way to the subject
matter hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other Parties.
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(e) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including telex and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
delivered by facsimile transmission, or mailed (airmail if international) by
registered or certified mail (postage prepaid), return receipt requested,
addressed to:
If to CBF or FINB: Xxxxx X. Xxxxx
Chairman of the Board, President and Chief
Executive Officer
Centerstate Banks of Florida, Inc.
0000 Xxxxx Xxxx 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to First National/Osceola: Xxxxxx X. Xxxxx
President and Chief Executive Officer
First National Bank of Osceola County
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
and, in all cases, with copies to: Xxxx X. Xxxxxxx, Esquire
Smith, Mackinnon, Greeley, Bowdoin,
Edwards, Xxxxxxxx & Marks, P.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address as any Party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by hand delivery; (b) on the date of transmission with
confirmed answer back if by telex, facsimile or other telegraphic method; and
(c) on the date upon which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as the
case may be, if mailed.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to principles of conflict of laws.
(i) Amendments and Waivers. To the extent permitted by law,
the Parties may amend any provision of this Agreement at any time prior to the
Effective Time of the Merger by a subsequent writing signed by each of the
Parties upon the approval of their respective Boards of Directors; provided,
however, that after approval of this Agreement by a Party's shareholders, there
shall be made no amendment in the Conversion Ratio in a manner that adversely
affects the
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economic value of the Merger to such shareholders without their further
approval. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by all of the Parties. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the remaining terms and provision
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Parties agree that the court making the
termination of invalidity or unenforceability shall have the power to reduce the
scope, duration, or area of the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provisions with a
term or provisions that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(k) Expenses. Each Party shall bear its own expenses in
connection with the negotiation and execution of this Agreement and the
implementation and effectiveness of the Merger. Notwithstanding the foregoing,
if any legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
successful or prevailing Party or Parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such Party or Parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees, investigative
fees, administrative costs, sales and use taxes and all other charges billed by
the attorney to the prevailing Party.
(l) Construction. The language used in this Agreement shall be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any Party.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context otherwise requires.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(n) Jurisdiction and Venue. The Parties acknowledge that a
substantial portion of negotiations and anticipated performance and execution of
this Agreement occurred or shall occur in Polk County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the Parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in a state or federal court of record in Polk County;
(b) consents to the jurisdiction of each such Court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such Party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in said state.
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(o) Remedies Cumulative. Except as otherwise expressly
provided herein, no remedy herein conferred upon any Party is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. No single
or partial exercise by any Party of any right, power or remedy hereunder shall
preclude any other or further exercise thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement and
have affixed their respective seals as of the date first above written, each by
its President and Chief Executive Officer and attested to by its Cashier or
Secretary, pursuant to a resolution of its Board of Directors, acting by a
majority.
CENTERSTATE BANKS OF FLORIDA, INC. FIRST NATIONAL BANK OF OSCEOLA
COUNTY
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------- -------------------------------------
Xxxxx X. Xxxxx, Chairman of the Board Xxxxxx X. Xxxxx
President and Chief Executive Officer President and Chief Executive Officer
Attest: Attest:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------- -------------------------------------
Xxxxxx X. Xxxxxxxx, Secretary Xxxxx X. Xxxxxxxx, Senior Vice
President and Cashier
STATE OF FLORIDA
COUNTY OF POLK
The foregoing instrument was acknowledged before me this 10th day of
December, 1999, by Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx, Chairman of the Board,
President and Chief Executive Officer, and Secretary, respectively, of
Centerstate Banks of Florida, Inc.
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Printed Name: /s/ Xxxx X. Xxxxxxx
-----------------------
Notary Public, State of Florida
Personally Known [X] or Produced Identification [ ]
Type of Identification Produced
------------------------------------------------
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STATE OF FLORIDA
COUNTY OF OSCEOLA
The foregoing instrument was acknowledged before me this 10th day of
December, 1999, by Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxx, President and Chief
Executive Officer, and Senior Vice President and Cashier, respectively, of First
National Bank of Osceola County.
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Printed Name: /s/ Xxxx X. Xxxxxxx
-----------------------
Notary Public, State of Florida
Personally Known [ ] or Produced Identification [ ]
Type of Identification Produced
------------------------------------------------
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JOINDER
First Interim National Bank of Osceola County hereby joins in the
foregoing Agreement, undertakes that it be bound thereby and that it will duly
perform all the acts and things therein referred or provided to be done by it.
IN WITNESS WHEREOF, First Interim National Bank of Osceola County has
caused this undertaking to be made by its duly authorized officers as of this
____ day of _____________, ______.
FIRST INTERIM NATIONAL BANK OF
OSCEOLA COUNTY
-------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
Attest:
-------------------------------------
Xxxxx X. Xxxxxxxx, Cashier
STATE OF FLORIDA
COUNTY OF OSCEOLA
The foregoing instrument was acknowledged before me this _____ day of
__________, _____, by Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxx, the President and
Chief Executive Officer, and Cashier, respectively, of First Interim National
Bank of Osceola County.
-------------------------------------
Printed Name:
-----------------------
Notary Public, State of Florida
Personally Known [ ] or Produced Identification [ ]
Type of Identification Produced
------------------------------------------------
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SCHEDULE 1.4
TO
AGREEMENT TO MERGE
NAMES AND ADDRESSES OF DIRECTORS AND EXECUTIVE OFFICERS
OF SURVIVING BANK
DIRECTORS EXECUTIVE OFFICERS
--------- ------------------
O. Xxx Xxxxxx Xxxxx X. Xxxxx
0000 Xxxxx Xxx Xxxxx 000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
0000 X. Xxxxx Xxxxx Xxxx 000 Xxxxxxx Xx.
Xxxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
A. Xxxxxx Xxxxxx Xxxxx X. Xxxxx
P. O. Box One P. O. Xxx 000
Xxxxx, XX 00000 Xxxxxx Xxxx, XX 00000-0000
Xxxxx X. Judge Xxxxxx X. Xxxxx
000 Xxxxxx Xxxxxxxxx 0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx
0000 X. Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxx
0000 Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Xxxxxx X. Xxxxxx, XX
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
R. Xxxxxxx Xxxxx, Jr.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
000 X. Xxxxxxxx Xxx., X
Xxxxxxxxx, XX 00000
X. Xxxxxxx Sessions
P. O. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Xxxxx X. Xxxxxx
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxx
P. O. Xxx 000
Xxxxxx Xxxx, XX 00000-0000
Xxxxxx X. Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
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SCHEDULE 1.6
TO
AGREEMENT TO MERGE
CAPITALIZATION OF SURVIVING BANK
The capital stock, capital surplus and retained earnings of the
Surviving Bank shall be the following amounts adjusted, however, for earnings
and expenses and shares issued between September 30, 1999 and the Effective Time
of the Merger:
Common Stock, $5.00 par value; 550,000
shares authorized; 511,175 shares issued and
outstanding $ 2,555,875
Capital surplus 2,634,579
Net unrealized gains/losses on securities held
as available-for-sale (84,650)
Retained earnings 3,293,563
-----------
Total Shareholders' Equity $ 8,399,367
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