STOCK PURCHASE AGREEMENT
by and among
REPUBLIC SECURITY FINANCIAL CORPORATION,
REPUBLIC SECURITY BANK, FEDERAL SAVINGS BANK,
and
ALL OF THE SHAREHOLDERS OF BANYAN BANK
SEPTEMBER 7, 1995
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE PURCHASE
1.1 Agreement to Purchase......................................... 1
1.2 Shares Escrow................................................. 3
1.3 Representation of Sellers..................................... 3
1.4 Cash Amount................................................... 3
1.5 The Closing................................................... 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PRINCIPALS
2.1 Corporate Organization........................................ 5
2.2 Capitalization; Stock Ownership............................... 5
2.3 Investments; No Subsidiary.................................... 5
2.4 Authorization and Enforceability; No Violation................ 6
2.5 Financial Statements.......................................... 6
2.6 Loan Portfolio................................................ 7
2.7 Deposits...................................................... 7
2.8 No Undisclosed Liabilities, Etc............................... 7
2.9 Absence of Certain Changes.................................... 7
2.10 Real Properties............................................... 9
2.11 Taxes and Fees................................................ 9
2.12 Contracts..................................................... 10
2.13 Litigation.................................................... 11
2.14 Compliance with Laws and Regulations.......................... 11
2.15 Employment Benefit Plans and Arrangements; Labor
Matters....................................................... 12
2.16 Accounting Practices.......................................... 13
2.17 Minute Books.................................................. 13
2.18 Insurance..................................................... 13
2.19 Agreements with Regulators.................................... 13
2.20 Environmental................................................. 14
2.21 Community Reinvestment Act.................................... 14
2.22 Transactions with Insiders.................................... 14
2.23 Fidelity Bond................................................. 14
2.24 Brokers....................................................... 14
2.25 No Untrue Statements.......................................... 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RSFC AND REPUBLIC
3.1 Corporate Organization........................................ 15
3.2 Authorization and Enforceability; No Violation................ 15
3.3 Corporate Organization........................................ 15
3.4 Authorization and Enforceability; No Violation................ 16
3.5 Brokers....................................................... 16
3.6 No Takeover Activity.......................................... 16
3.7 No Untrue Statements.......................................... 16
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ARTICLE IV
COVENANTS OF SELLERS
4.1 Access, Information and Documents............................. 17
4.2 No Other Transactions......................................... 17
4.3 Conduct of Business Prior to the Closing...................... 18
4.4 Negative Covenants............................................ 18
4.5 Current Information........................................... 20
4.6 Cooperation with Republic..................................... 20
4.7 Future Financial Statements................................... 20
4.8 Observer at Meetings.......................................... 20
ARTICLE V
COVENANTS OF REPUBLIC
5.1 Pursuit of Approvals.......................................... 21
5.2 Public Offering............................................... 21
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF REPUBLIC AND SELLERS
6.1 Government Approvals.......................................... 21
6.2 No Litigation................................................. 22
6.3 Authority to Close............................................ 22
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF REPUBLIC
7.1 Representations, Warranties and Covenants..................... 23
7.2 Material Change............................................... 23
7.3 Financial Conditions.......................................... 23
7.4 100% Purchase................................................. 23
7.5 Public Offering............................................... 23
7.6 Accountants' Comfort Letter................................... 23
7.7 Opinion of Counsel............................................ 24
7.8 Officers' Certificates........................................ 25
7.9 Consents...................................................... 25
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination by Mutual Consent................................. 25
8.2 Termination by Sellers........................................ 25
8.3 Termination by Republic....................................... 26
8.4 Effect of Termination......................................... 26
8.5 Extension or Waiver........................................... 27
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
9.1 Survival of Representations and Warranties.................... 27
9.2 Indemnification by the Principals............................. 27
9.3 Indemnification by RSFC and Republic.......................... 28
9.4 Claims Procedure.............................................. 28
9.5 Limitations on Indemnification................................ 29
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ARTICLE X
MISCELLANEOUS
10.1 Sellers Deposit Relationship................................. 30
10.2 Release of Xxxxxx X. Xxxxx................................... 30
10.3 Expenses..................................................... 30
10.4 Legal Fees................................................... 30
10.5 Entire Agreement; Amendment; Waiver.......................... 30
10.6 Notices...................................................... 31
10.7 Rights Under this Agreement; Nonassignability................ 32
10.8 Form of This Agreement....................................... 32
10.9 Governing Law................................................ 32
10.10 Public Announcements......................................... 32
10.11 Counterparts................................................. 32
Schedules
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and
entered into as of September 7, 1995, by and among REPUBLIC SECURITY FINANCIAL
CORPORATION, a Florida corporation ("RSFC"), REPUBLIC SECURITY BANK, FEDERAL
SAVINGS BANK, a federal stock savings bank ("Republic"), and all of the
shareholders of Banyan Bank ("Sellers").
RECITALS
WHEREAS, each of the Sellers owns the number of shares of
$6.00 par value common stock of Banyan Bank, a Florida state bank ("Banyan"),
set forth opposite the Seller's name in Section 1.1 of this Agreement, and such
shares constitute all of the issued and outstanding shares of common stock of
Banyan (the "Shares"); and
WHEREAS, Republic desires to purchase, and the Sellers desire
to sell, the Shares upon the terms and conditions set forth herein; and
WHEREAS, Republic is willing to enter into this Agreement only
on the condition that Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx (the "Principals"),
as owners of 64,065 Shares and 114,800 Shares, respectively, enter into this
Agreement to agree to maintain deposit relationships with Republic after the
Purchase and to indemnify Republic in the manner provided herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which are
conclusively acknowledged, the parties do represent, warrant, covenant and agree
as follows:
ARTICLE I
THE PURCHASE
1.1 AGREEMENT TO PURCHASE. At the Closing (hereinafter
defined), Republic agrees to purchase, and each of the Sellers agrees to sell
(the "Purchase"), the number of Shares set forth opposite the Seller's name
below for the cash purchase per share price equal to the "Cash Amount":
NUMBER
SELLER OF SHARES
------ ---------
Xxxxxx X. Xxxxx 57,643
Xxxxxxx X. Xxxxx, Trustee 114,800
U/D/T/ dated December 30, 1989
J. Xxxxxxx Xxxxx and 2,500
Xxxxxxxx X. Xxxxx
J. Xxxxxxx Xxxxx XXX 2,000
Xxxxxxx Xxxxx 1,100
Xxxxxx Xxxxxxxxxx 2,500
Xxxxxxx X. Xxxxx, Xx. 52,643
Xxxxxx X. Xxxxx or 6,422
Xxxxxxxxx Xxxxx
Xxxxxx X. Xxxxx, Trustee 76,800
U/D/T/ dated December 30, 1989
Xxxxxx X. Xxxxx Trust for the 7,326
Benefit of Xxxx X. Xxxxx
Xxxxxx X. Xxxxx Trust for the 7,326
Benefit of Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx Trust for the 7,326
Benefit of Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx Trust for the 7,326
Benefit of Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxxxxx or 31,257
Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx Trustee, 3,126
Xxxxxxxx X. Xxxxxxxxxx, UTAD 12/78
Xxxx Xxxxxxxxxx Trustee, 3,126
Xxxxxxx X. Xxxxxxxxxx, UTAD 12/78
Xxxx Xxxxxxxxxx Trustee, 3,126
Xxx X. Xxxxxxxxxx, UTAD 12/78
Xxxxx X. Xxxxxxx 4,226
Xxxxxxx Xxxxxxx Custodian for 4,226
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx Custodian for 4,226
Xxxxx X. Xxxxxxx
Xxxxx X. or Xxxxxxx Xxxxxxx 3,126
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Xxxxxxx X. Xxxxx, Xx., 4,226
Trustee for Xxxxxxxxx Xxxxx
Xxxxxxx X. Xxxxx, Xx., 3,126
Trustee for Xxxxxxx Xxxxx
Xxxxxxxxx X. Xxxxxxx Trust 17,628
Xxxxxxxxx X. Xxxxxxx 4,226
Trustee for Xxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx 4,226
Trustee for Xxxxxx Xxx Xxxxxxx
Xxxx Xxxxxxxxxx Trustee, 1,100
Xxxxxxxx X. Xxxxxxxxxx, UTAD 12/89
Xxxx Xxxxxxxxxx Trustee, 1,100
Xxxxxxx X. Xxxxxxxxxx, UTAD 12/89
Xxxx Xxxxxxxxxx Trustee, 1,100
Xxx X. Xxxxxxxxxx, UTAD 12/89
Xxxx Xxxxxxxxxx 2,000
Xxxxxxx Xxxxxxx 2,000
1.2 SHARES ESCROW. Within 30 days of the date of this
Agreement, each Seller agrees to deliver to Xxxxxx X. Xxxxx ("Xxxxx") all of the
stock certificates representing the Seller's shares together with stock powers
(in the form of Schedule 1.2 hereof) duly endorsed by the Seller to transfer the
Shares. Xxxxx hereby agrees to deliver the stock certificates and stock powers
to Republic at the Closing against receipt of bank checks in the amount of the
"Cash Amount" payable to each Seller. In the event that this Agreement
terminates in accordance with its terms prior to the Closing, Xxxxx agrees to
return each such stock certificate and stock power to its respective owner.
1.3 REPRESENTATION OF SELLERS. Each Seller hereby represents
and warrants to Republic that his or her shares are duly owned by the Seller are
now, and at the Closing will be, free and clear of any and all liens, security
interests or encumbrances of any kind or nature and that the Shares may be sold
and transferred to Republic without restriction.
1.4 CASH AMOUNT. The "Cash Amount" shall be equal to
the Total Consideration divided by the number of shares of Banyan
Common Stock issued and outstanding at the Closing. The "Total
Consideration" shall be equal to 207% of the first $4,600,000 of
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Tangible Equity of Banyan, plus 100% of any Tangible Equity in excess of
$4,600,000, as of the calendar month ended immediately prior to the Closing
Date. "Tangible Equity" shall have the meaning set forth in 12 C.F.R.
ss.325.2(s), provided that all expenses of the transactions contemplated by this
Agreement, including, without limitation, counsel and accountants' fees, shall
be paid prior to such calendar month ended prior to the Closing Date and proof
of payment shall be delivered at the Closing. Schedule 1.4 attached hereto sets
forth an example of a determination of Total Consideration. The parties agree
that Schedule 1.4 is as of June 30, 1995 (not the month prior to Closing), is
solely for example purposes and is not based on amounts which any party has
verified.
Sellers agree to cause Banyan, on or before the seventh day of
the month in which the Closing is to occur, to deliver to Republic Banyan's
unaudited statements of financial condition and operation as of and for the
period ended on the calendar month ended immediately prior thereto. In the event
that Banyan so delivers such financial statements and Republic fails to close
the Purchase on or before seven days after such delivery, then the Total
Consideration shall be increased by an amount equal to the "Per Diem." The "Per
Diem" shall mean the amount equal to simple interest on the amount of total
consideration, determined as of such calendar month end, from the date of such
month end to the Closing Date at the rate per annum equal to the 30-day
Commercial Paper rate (high-grade unsecured notes sold through dealers by major
corporations) as published in THE WALL STREET JOURNAL for the last banking day
of such calendar month. In the event (i) Banyan so delivers such financial
statements and Republic closes the Purchase on or before seven days after such
delivery or (ii) Banyan fails to deliver such financials within such first seven
days of the month, then no Per Diem will be added to the Total Consideration.
1.5 THE CLOSING. The closing of the transactions described
herein (the "Closing") shall take place at the offices of Republic, 0000
Xxxxxxxx Xxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx, at 10:00 a.m., local time, on the
date determined by Republic after January 1, 1996, not more than 30 days after
the calendar month end first occurring after the later of (i) the date of the
letter of preliminary approval of the applicable regulatory authority approving
a merger of Banyan into Republic immediately after the Closing (the "Merger"),
(ii) the date of the closing of the underwritten public offering referred to in
Section 5.2 hereof to be made by RSFC or (iii) such later date on which all
conditions precedent to such Closing contained in Articles VI and VII hereof
have been satisfied or duly waived; or at such other date, time and place as the
parties shall agree, but in no event later than February 29, 1996. In the event
the Closing fails to take place prior to March 1, 1996 solely because of a
failure to obtain
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regulatory approval of the Merger, the parties agree that this Agreement is not
terminable as provided in Sections 8.2 and 8.3 hereof until after midnight March
31, 1996. The term "Closing Date" shall mean the date on which the Closing takes
place.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PRINCIPALS
"Material" as used in this Article II shall mean an effect
with a value of at least $50,000.
The Principals hereby represent and warrant to RSFC and
Republic, to the best of their knowledge, as follows:
2.1 CORPORATE ORGANIZATION. Banyan is a Florida chartered
state bank, duly organized and validly existing under the laws of the United
States and in good standing with the State of Florida and the Federal Deposit
Insurance Corporation (the "FDIC"). Banyan has the corporate power and authority
to carry on its business and operations as now being conducted and to own and
operate its properties and assets as now owned and being operated by it.
Banyan's deposit accounts are duly insured by the FDIC to the maximum extent
permitted under applicable law. Banyan has delivered to Republic complete and
correct copies of Banyan's Articles of Incorporation and Bylaws, as amended to
date, which are in full force and effect on the date hereof.
2.2 CAPITALIZATION; STOCK OWNERSHIP. As of the date hereof,
the authorized capital stock of Banyan consists of 600,000 shares of common
stock, par value $6.00 per share, of which 442,883 shares are issued and
outstanding (none of which are held by Banyan as treasury stock). All of the
issued and outstanding shares of Banyan Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable, and none of them were
issued in violation of any preemptive or other right. Except as described on
Schedule 2.2 hereof, Banyan is not a party to or bound by any contract,
agreement or arrangement to issue, sell or otherwise dispose of or redeem,
purchase or otherwise acquire any of its capital stock and there is no
outstanding option, warrant or other right to subscribe for or purchase, or
contract, agreement or arrangement with respect to, any capital stock of Banyan
or any other security exercisable or convertible into any capital stock of
Banyan. All such options or other items shown on Schedule 2.2 shall be
terminated prior to Closing without any expense to Banyan.
2.3 INVESTMENTS; NO SUBSIDIARY. Banyan does not own,
directly or indirectly, any shares of capital stock of any
corporation or any equity investment in any partnership,
association or other business organization.
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2.4 AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION. This
Agreement is a legal, valid and binding obligation of Sellers enforceable
against Sellers in accordance with its terms, except as enforceability may be
limited by regulatory authorities having jurisdiction or by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and except that the availability of
equitable remedies is within the discretion of the appropriate court. Except for
required regulatory approvals, the execution, delivery and performance of this
Agreement do not, and the consummation of the Purchase and the Merger will not,
(a) violate or conflict with the Articles of Incorporation or Bylaws of Banyan,
(b) require any third-party consent pursuant to or result in any breach of or
default under any provision of any contract or agreement of any kind to which
Banyan is a party or by which it is bound or to which any of its property or
asset is subject, (c) result in any breach or violation of, or default under, or
any event which with due notice or lapse of time or both would constitute a
default under, result in the termination of, or accelerate the performance
required by, or require Banyan to obtain or make any consent, authorization,
approval, registration or filing (other than as described in this Agreement),
under any statute, law, bylaw, ordinance, regulation, rule, judgment, decree,
order, license, waiver, variance or other requirement of any court or agency,
board, bureau, body or department of the United States or any state thereof
which is applicable to Banyan or any of the properties or assets of Banyan, (d)
cause any acceleration of maturity of any note, instrument or other obligation
to which Banyan is a party or by which either is bound or with respect to which
it is an obligor or guarantor, or (e) result in the creation or imposition of
any lien, pledge, claim, charge, restriction, equity or encumbrance of any kind
whatsoever upon or give to any other person any interest or right, including any
right of termination or cancellation, in or with respect to any of the business,
operations, properties, assets, agreements or contracts of Banyan.
2.5 FINANCIAL STATEMENTS. Banyan has delivered to Republic
copies of its audited statements of financial condition as of December 31, 1992,
1993 and 1994, and statements of changes in shareholders' equity, statements of
cash flows and statements of operations for each of the years then ended,
together with supporting schedules and notes thereto, audited by McGladrey &
Xxxxxx, certified public accountants, and its unaudited statements of financial
condition as of June 30, 1995 and statements of operations for the six-month
period then ended (such statements as of and for the period ended June 30, 1995
are hereinafter referred to as the "Interim Statements"). All of the
aforementioned financial statements, including, without limitation, the
allowance for loan losses, (and the Future Financial Statements, to be delivered
to RSFC in accordance with Section 4.7 hereof), are (or
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will be) true, correct and complete in all material respects and present (or
will present) the financial position and results of operations of Banyan as of
the respective dates of such financial statements and for the respective periods
then ended in conformity with GAAP, consistently applied throughout the periods
involved.
2.6 LOAN PORTFOLIO. With respect to each loan owned by
Banyan in whole or in part (each, a "Loan"), except as described on
Schedule 2.6 hereto:
(a) neither Banyan nor any prior holder of a Loan has modified
the note or any of the related security documents in any material
respect or satisfied, cancelled or subordinated the note or any of the
related security documents except as otherwise disclosed by documents
in the applicable Loan file;
(b) Banyan is the sole holder of legal and beneficial
title to each Loan (or Banyan's applicable participation
interest, as applicable);
(c) the note and the related security documents, copies of
which are included in the Loan files, are true and correct copies of
the documents they purport to be and have not been superseded, amended,
modified, cancelled or otherwise changed except as otherwise disclosed
by documents in the applicable Loan file;
(d) each Loan secured by a mortgage on residential
property (except for construction loans) was originated by a
bank, thrift or other HUD-approved lender.
2.7 DEPOSITS. None of the deposits of Banyan is a
"brokered" deposit.
2.8 NO UNDISCLOSED LIABILITIES, ETC. Since December 31, 1994
(except for the transactions contemplated by this Agreement), Banyan has not
incurred or become aware of any liability or obligation (absolute, accrued,
contingent or otherwise) of any nature which should properly have been reflected
or reserved for in the Interim Statements and were not so reflected and
reserved.
2.9 ABSENCE OF CERTAIN CHANGES. Except as described on
Schedule 2.9 and/or as reflected in the Interim Statements, since December 31,
1994 (except for the transactions contemplated by this Agreement), Banyan has
not:
(a) had any change in financial condition, properties,
business or operations which would have a material adverse
effect;
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(b) suffered any damage, destruction or loss of physical
property or assets (whether or not covered by insurance), in
the aggregate in excess of $10,000 in value;
(c) issued, sold or otherwise disposed of, or agreed to
issue, sell or otherwise dispose of, any of its capital stock;
(d) incurred or agreed to incur any material indebted-
ness for borrowed money, other than in the ordinary course of
business;
(e) made or obligated itself to make any capital
expenditure in excess of $25,000 in the aggregate;
(f) mortgaged, pledged or subjected to any charge, lien, claim
or encumbrance, or agreed to mortgage, pledge or subject to any charge,
lien, claim or encumbrance, any of its material properties or assets,
other than in the ordinary course of business;
(g) declared, set aside or paid any dividend (whether in cash,
property or stock) with respect to any of its capital stock, or
redeemed, purchased or otherwise acquired, or agreed to redeem,
purchase or otherwise acquire, any of its capital stock;
(h) increased the compensation or bonuses or special
compensation of any kind of any of its directors, officers, employees
or agents over the rate being paid to them on July 31, 1995, other than
in the ordinary course of business, or adopted or increased any
benefits under any insurance, pension or other employee benefit plan,
payment or arrangement made to, for or with any such director, officer,
employee or agent;
(i) made or permitted any amendment or termination of
any material contract, agreement or license to which it is a
party, other than in the ordinary course of business;
(j) made any material change in its accounting methods
or practices with respect to its financial condition,
properties, business or operations;
(k) repaid any outstanding loans, other than repayments
in the ordinary course of business;
(l) entered into any other material transaction not in
the ordinary course of business;
(m) become aware of the need to make additional specific
provisions for reserves for loan losses which would have a
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material adverse effect on its financial condition, proper-
ties, business or operations;
(n) hired any new officers, other than in the ordinary
course of business, consistent with past practice; and
(o) entered into any real estate or equipment lease,
requiring aggregate rental payments in excess of $10,000;
2.10 REAL PROPERTIES. Schedule 2.10 hereto describes all real
estate owned or leased by Banyan, exclusive of "other real estate owned"
acquired by Banyan as a result of foreclosure or "deed in lieu" settlements and
held by Banyan for resale. All such real property, if owned by Banyan, is owned
under good, clear and marketable title, free and clear of all claims, liens,
charges, security interests or encumbrances of any nature whatsoever except (i)
statutory liens securing payments not yet due, (ii) liens which are incurred in
the ordinary course of its business and (iii) such imperfections or
irregularities of title, claims, liens, charges, security interests or
encumbrances as do not materially impair business operations at such property.
Banyan is the lessee of all leasehold estates described in Schedule 2.10 and is
in possession of the properties purported to be leased thereunder and each such
lease is valid, without default thereunder by the lessee or the lessor. True and
complete copies of all leases listed in Schedule 2.10 have been delivered by
Banyan to RSFC.
2.11 TAXES AND FEES. All tax, fee and information returns or
forms (each a "return") required to have been filed prior to the date of this
Agreement by Banyan with respect to the business, operations, properties, assets
or liabilities of Banyan, including, without limitation, information and other
returns for customers and depositors, with any governmental agency, board,
bureau, body, department, authority or municipality of the United States, any
state thereof, or any other jurisdiction have been duly and timely filed
(including within extension periods permitted by IRS regulations), and each such
return in all material respects correctly reflects, as applicable, the income,
sales, excise, capital, place of business, franchise, fuel, custom or other tax
or fee liability and all other information required to be reported thereon, and
all such taxes or fees shown as due on such returns have been paid or accrued
other than taxes or fees described on Schedule 2.11 hereto which are being
contested and which have not been finally determined. Except as set forth on
Schedule 2.11 hereto, there is no issue relating to any such return that, if
determined adversely to Banyan, would result in the assertion of any material
deficiency for any tax or fee or interest or penalties in connection therewith,
and no facts or circumstances exist as of the date hereof which could give rise
to any such issue. The provisions for taxes due by Banyan in the Interim
Statements are sufficient for all unpaid taxes, whether or not disputed, for the
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period then ended and all prior periods for which tax returns are not yet
required to be filed. Except as set forth on Schedule 2.11 hereto, Banyan has
not (a) entered into any agreement, waiver or other arrangement with respect to
any extension of time for the filing of any tax return, the payment of any tax,
the period during which any tax authorities may assess or reassess any amounts
or the running of any statute of limitations, or with respect to any tax issues
relating to or which may materially affect its financial condition, properties,
business or operations or (b) since December 31, 1994, incurred any tax
liability as a result of any transaction relating to its financial condition,
properties, business or operations that was not fully reflected or reserved
against in the Interim Statements other than tax accruals in the ordinary course
of business. The federal income tax returns of Banyan have never been audited.
Except as set forth on Schedule 2.11 hereto, there are no actions, suits,
proceedings, investigations or claims now pending or threatened against Banyan
in respect of any material taxes, assessments, fees or any matters under
discussion with any governmental authority relating to any material taxes,
assessments, or fees, relating to its business, operations, properties, assets
or liabilities. Banyan has collected or withheld from each payment made to any
of its current or former customers, depositors, shareholders, officers,
creditors, employees and other persons the amount of all material taxes,
including but not limited to income taxes and "backup" withholding, required to
be collected or withheld therefrom, and, to the extent required, have paid the
same to the proper tax or other receiving authority within the time required
under any applicable requirements.
2.12 CONTRACTS. Except as set forth on Schedule 2.12
hereto, Banyan is not a party to any written or oral:
(a) contract or agreement, other than contracts or
agreements made in the ordinary course of business, involving
more than $10,000;
(b) contract or agreement with any governmental
authority, other than contracts or agreements made in the
ordinary course of business;
(c) contract or agreement providing for the settlement
of any material action, suit, proceeding or investigation
involving Banyan;
(d) employment or consulting agreement of any kind with any
officer, director, employee or consultant, or any policy, program,
agreement or understanding (whether or not in the form of an agreement)
obligating Banyan to pay any amount to any officer or employee on
account of severance or termination of employment;
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(e) contract or collective bargaining agreement with any
labor union or representative of its employees; or
(f) contract or agreement which is material to its
financial condition, properties, business or operations.
Except as set forth in Schedule 2.12 hereto, each contract or other agreement to
which Banyan is a party is in full force and effect and is valid and enforceable
by Banyan in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and, as to
enforceability, to general principles of equity. Neither Banyan nor any other
party is in default in any material respect in the observance or the performance
of any term or obligation to be performed by it under any such contract or other
agreement. Banyan has delivered or made available to Republic true and complete
copies of all contracts and agreements referred to in clauses (a) through (e)
above, and any agreement, contract or commitment with any present or former
shareholder, director, officer, employee or consultant or for the employment of
any person.
2.13 LITIGATION. Except as set forth in Schedule 2.13 hereto
and except for actions in which Banyan is the plaintiff where the amount in
controversy is less than $10,000, there are no actions, suits, proceedings or
investigations before any court or administrative authority in the United
States, any state thereof, or any other jurisdiction, of any kind now pending or
threatened or any facts or circumstances which could give rise to, any such
action, suit, proceeding or investigation, involving Banyan or any of its
businesses, operations, properties, assets or liabilities. There is no
arbitration proceeding involving Banyan which is pending or threatened under any
collective bargaining agreement. Except as set forth in Schedule 2.13 hereto,
neither Banyan nor any of its properties, assets or liabilities, is subject to
any judicial or administrative judgment, order, decree or restraint which
adversely affects its business, operations or financial condition.
2.14 COMPLIANCE WITH LAWS AND REGULATIONS. The business and
operations of Banyan have been and are in all material respects conducted in
accordance with all applicable laws, rules and regulations (including, without
limitation, the Equal Credit Opportunity Act, the Consumer Credit Protection
Act, the Truth in Lending Act, the Community Reinvestment Act and the Real
Estate Settlement Procedures Act), and Banyan is not subject to or being
threatened with, any material fine, penalty, liability or legal disability to
its business as the result of its failure to comply with any requirement of any
governmental body or agency having jurisdiction over it, the conduct of its
business, the use of its assets and properties, or any premises occupied by it.
Banyan has filed all reports and maintained all records required to be filed
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or maintained during the past five fiscal years and the current fiscal year
under applicable rules and regulations of the FDIC and the State of Florida.
Each such filing contains the information required to be stated therein and such
information was true and correct in all material respects as of the time such
report was filed.
2.15 EMPLOYMENT BENEFIT PLANS AND ARRANGEMENTS; LABOR
MATTERS.
(a) Schedule 2.15 hereto lists all employee benefits plans,
contracts, programs or arrangements, including but not limited to
pension, profit-sharing, stock option, stock bonus, deferred
compensation, supplemental retirement, severance, health care,
hospitalization, medical, dental, disability, life insurance and salary
continuation, which are currently maintained, contributed to or
required to be contributed to by Banyan or which otherwise cover or
provide benefits to any employee or former employee of Banyan or any
beneficiary thereof (collectively, the "Plans"). Banyan has delivered
to RSFC true and complete copies of all of the Plans and all documents
relating thereto, including, but not limited to, summary plan
descriptions, annual reports (IRS Form 5500 Series), actuarial reports,
and accountant or trustee reports, if any, and such reports are
accurate in all material respects and there has been no material change
in the financial or funding status of any such Plan since the dates of
the most recent of such reports. Each Plan has been maintained and
administered in all material respects in accordance with its terms and
with all applicable laws, including the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations promulgated
thereunder, and in a manner which will not result in any material
charge or assessment against or liability of Banyan. Except as set
forth on Schedule 2.15 hereto, any Plan that is intended to qualify
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and nothing has occurred since the
date of such determination that could adversely affect such
qualification. The fair market value of the assets of each Plan that is
subject to Title IV equals or exceeds the present value of all benefit
liabilities (as defined in Title IV of ERISA) under the Plan, with such
present value being determined by application of the actuarial methods
and assumptions applied by the Plan's enrolled actuary at the most
recent annual valuation of the Plan. Banyan has not engaged in any
transaction which may result in imposition on it of any material excise
tax under Sections 4971 through 4980, inclusive, of the Code, or
otherwise incurred a liability for any excise tax, other than excise
taxes which have heretofore been paid or have been accrued, and, in
either
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case are fully reflected in the Interim Statements. There does not
exist any accumulated material funding deficiency (within the meaning
of Section 302 of ERISA or Section 412 of the Code), whether or not
waived, with respect to any Plan. There are no circumstances pursuant
to which Banyan could be liable to the Pension Benefit Guaranty
Corporation or a multi-employer plan (as defined in Section 3(37) of
ERISA) with respect to any plan not listed on Schedule 2.15. Except as
set forth in Schedule 2.15 hereto, no Plan provides hospital, medical
or health care benefits (other than those mandated by the Consolidated
Omnibus Budget Reconciliation Act of 1986) or any life insurance or
death benefit protection (other than under a Plan that qualifies under
Section 401(a) of the Code) to any retired employees.
(b) As of the date hereof, no association of employees has
petitioned or applied for labor union certification with respect to all
or any part of the business or operations of Banyan nor is there any
organized campaign to obtain any such certification and there have been
no negotiations with any labor union or association of employees with
respect to any future or amended agreements by Banyan involving its
business or operations and Banyan has not made or received any offers
or proposals with respect thereto.
2.16 ACCOUNTING PRACTICES. The books, records and accounts
maintained by Banyan accurately and fairly reflect in reasonable detail its
businesses, operations, properties, assets and liabilities, and Banyan maintains
internal accounting controls that provide reasonable assurances that
transactions are executed only with management's authorization and transactions
are recorded as necessary to permit preparation of accurate financial statements
and to maintain accountability for its properties and assets.
2.17 MINUTE BOOKS. The minute books of Banyan are in all
material respects complete and accurate records of all meetings and other
corporate actions of its shareholders and Board of Directors and Banyan has made
available to Republic for inspection the originals thereof or delivered true
copies thereof.
2.18 INSURANCE. All of the insurance policies in force on the
date hereof insuring Banyan, and its assets, business, employees, officers and
directors, are described in Schedule 2.18 hereto. Banyan has delivered or made
available to Republic true and complete copies of all such policies.
2.19 AGREEMENTS WITH REGULATORS. Banyan is not currently a
party to any written agreement or memorandum of understanding with, nor a party
to any commitment letter or similar undertaking to, nor subject to any order or
directive by, nor a recipient of any extraordinary supervisory letter from, the
Federal Reserve, the
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FDIC or the State of Florida which restricts the conduct of its business, or in
any manner relates to its capital adequacy, its credit policies or its
management. Banyan has not been advised by the Federal Reserve, the FDIC or the
State of Florida that it is contemplating issuing or requesting any such
agreement, memorandum, commitment, understanding, order or supervisory letter.
2.20 ENVIRONMENTAL. Banyan is not (i) in violation of any law,
regulation, order, permit, license or decree regulating emissions into the
environment and the proper disposal of wastes, petroleum products or other
materials; or (ii) liable or responsible for any cleanup, fines, liability or
expense arising under any environmental law, regulation or order as a result of
the disposal of wastes, petroleum products or other materials in or on its
property (whether owned or leased or in which either has acquired an interest by
way of mortgage or foreclosure) by it, its predecessors in title, or any other
person, or in or on any other property, including property no longer owned,
leased or used by it. There are no asbestos or petroleum products or any
hazardous or waste material of any kind located under, on or in the property
(owned or leased) of Banyan, and such property has never been used for the
handling, treatment, storage or disposal of any petroleum products or any
hazardous or toxic substances as defined under any applicable state or federal
law.
2.21 COMMUNITY REINVESTMENT ACT. Except as set forth on
Schedule 2.21, Banyan has complied in all material respects with
its obligations under the Community Reinvestment Act.
2.22 TRANSACTIONS WITH INSIDERS. Except as set forth on
Schedule 2.22, all of the loans, transactions, agreements and dealings between
Banyan and any "Insider", as defined in Regulation O, comply in all respects
with the provisions of Regulation O.
2.23 FIDELITY BOND. Banyan has obtained all fidelity bonds
that are required by law or regulation. All such fidelity bonds are currently in
force and Banyan has no reason to anticipate that the issuers thereof will fail
to renew them or plan to revoke and/or cancel them.
2.24 BROKERS. Neither Banyan nor any director, officer,
employee, agent or other representative of Banyan has paid or is obligated to
pay to any party any finder's fee, brokerage commission or like payment in
connection with the transactions contemplated by this Agreement.
2.25 NO UNTRUE STATEMENTS. No statement by Banyan
contained in this Agreement or any of the Schedules hereto or
documents referred to herein contains or will contain any untrue
statement of a material fact, or omits or will omit to state a fact
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necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RSFC AND REPUBLIC
RSFC and Republic hereby represent and warrant to the Sellers
as follows:
3.1 CORPORATE ORGANIZATION. RSFC is a Florida corporation,
duly organized, validly existing and in good standing under the laws of the
State of Florida. RSFC has the corporate power and authority to carry on its
business and operations as now being conducted and to own and operate its
properties and assets as now owned and being operated by it. RSFC is qualified
or licensed to do business and is in good standing in each jurisdiction in which
it operates.
3.2 AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION. RSFC's
Board of Directors has duly authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and this
Agreement is a legal, valid and binding obligation of RSFC, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and except that the availability of
equitable remedies is within the discretion of the appropriate court. The
execution, delivery and performance of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (a) violate or
conflict with any provision of the Articles of Incorporation or Bylaws of RSFC,
(b) require any third party consent pursuant to or result in any breach of or
default under any provision of any contract or agreement of any kind to which
RSFC is a party or by which RSFC is bound or to which any property or asset of
RSFC is subject, or (c) result in any breach or violation of, or default under,
or any event which with due notice or lapse of time or both would constitute a
default under, result in the termination of, or accelerate the performance
required by, or require RSFC to obtain or make any consent, authorization,
approval, registration or filing (other than as described in this Agreement),
under any statute, law, bylaw, ordinance, regulation, rule, judgment, decree,
order, license, waiver, variance or other requirement of any court or agency,
board, bureau, body or department of the United States or any state thereof
which is applicable to Republic or any of the properties or assets of RSFC.
3.3 CORPORATE ORGANIZATION. Republic is a federal stock
savings bank, duly organized and validly existing under the laws of
the United States and in good standing with the OTS and the FDIC.
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Republic has applied to convert to become a Florida chartered state bank and, on
the Closing Date, may be either a federal stock savings bank or a Florida
chartered state bank. Republic has the corporate power and authority to carry on
its business and operations as now being conducted and to own and operate its
properties and assets as now owned and being operated by it. Republic is
qualified or licensed to do business and is in good standing in each
jurisdiction in which it operates.
3.4 AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION. Republic's
Board of Directors has duly authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and this
Agreement is a legal, valid and binding obligation of Republic, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and except that the availability of
equitable remedies is within the discretion of the appropriate court. The
execution, delivery and performance of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, (a) violate or
conflict with any provision of the Charter or Bylaws of Republic, (b) require
any third party consent pursuant to or result in any breach of or default under
any provision of any contract or agreement of any kind to which Republic is a
party or by which Republic is bound or to which any property or asset of
Republic is subject, or (c) result in any breach or violation of, or default
under, or any event which with due notice or lapse of time or both would
constitute a default under, result in the termination of, or accelerate the
performance required by, or require Republic to obtain or make any consent,
authorization, approval, registration or filing (other than as described in this
Agreement), under any statute, law, bylaw, ordinance, regulation, rule,
judgment, decree, order, license, waiver, variance or other requirement of any
court or agency, board, bureau, body or department of the United States or any
state thereof which is applicable to Republic or any of the properties or assets
of Republic.
3.5 BROKERS. Neither RSFC nor Republic, nor any director,
officer, employee, agent or other representative of RSFC or Republic, has paid
or is obligated to pay to any party any finder's fee, brokerage commission or
like payment in connection with the transactions contemplated by this Agreement.
3.6 NO TAKEOVER ACTIVITY. Neither RSFC nor Republic are
engaged in any discussions or negotiations which could result in a
merger with or acquisition of RSFC or Republic.
3.7 NO UNTRUE STATEMENTS. No statement by RSFC or
Republic contained in this Agreement or any of the Schedules hereto
contains or will contain any untrue statement of a material fact,
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or omits or will omit to state a fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE IV
COVENANTS OF SELLERS
4.1 ACCESS, INFORMATION AND DOCUMENTS. Prior to the date
hereof, Republic has conducted preliminary due diligence with respect to Banyan.
From the date hereof until the Closing, Sellers will cause Banyan to give, and
will cause its directors, officers, employees, agents and other representatives
to give, to Republic and to its agents and representatives (including, but not
limited to, its accountants and counsel) reasonable access to any and all of its
properties, assets, books, records and other documents, to enable Republic to
make such audit, examination and investigation of the business, operations,
properties, assets, liabilities, books, records and other documents of Banyan as
Republic may determine, and will furnish, and will cause its and its directors,
officers, employees, agents and other representatives to furnish, to Republic
such information and copies of such documents and records as Republic shall
request, including without limitation files relating to loans originated or
purchased, investments, leases, contracts, employment records and benefit plans,
minutes of the proceedings of the Board of Directors and any committees thereof,
minutes of shareholders' meetings, legal proceedings, examination reports,
correspondence with regulatory authorities and correspondence with independent
auditors. As part of such examination, Republic may make such reasonable
inquiries of such persons having professional relationships with Banyan as
Republic shall determine, and Banyan will authorize, and will cause its
directors, officers, employees, agents and other representatives to authorize,
such persons to respond to each inquiry and to cooperate fully with Republic in
connection therewith.
RSFC and Republic agree to keep confidential and not to
disclose to any persons, except its officers, directors, accountants and legal
counsel and as may otherwise be required by law, all confidential information
provided to it by Banyan in connection with the foregoing examination of Banyan.
4.2 NO OTHER TRANSACTIONS. Except and only to the extent
required by fiduciary obligations, no Seller shall, nor shall Seller permit any
of its directors, officers, employees, representatives, agents or other persons
controlled by Banyan to, directly or indirectly, encourage or solicit or hold
discussions or negotiations with, or provide any information to, any person,
entity or group (other than Republic) concerning any merger, sale of substantial
assets, sale of shares of capital stock or similar transactions involving
Banyan.
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4.3 CONDUCT OF BUSINESS PRIOR TO THE CLOSING. During
the period from the date of this Agreement to the Closing, Sellers shall cause
Banyan to (i) maintain its existence and good standing under the laws of its
organization, and (ii) conduct its business and engage in transactions only in
the ordinary course and consistent with its past prudent banking practices. In
addition, Sellers agrees to cause Banyan from the date hereof to the Closing,
except as permitted or required by this Agreement, not to take any action that
would result in any of the representations or warranties contained in this
Agreement not being true and correct in any material respect at the Closing.
Sellers agree to cause Banyan to confer with Republic upon the request of
Republic and advise Republic regarding all material (as defined in Article II
hereof) adverse developments, transactions and proposals relating to its
financial condition, properties, business or operations, and cause its
directors, officers, employees, agents and other representatives to disclose to
Republic any and all material changes in, or events which materially and
adversely affect, its financial condition, properties, business or operations.
4.4 NEGATIVE COVENANTS. From the date hereof to the Closing,
except as permitted or required by this Agreement (or as described on Schedule
4.4 hereof with respect to the loans or real estate owned described therein),
Sellers shall not permit Banyan, without the prior consent of Republic to:
(a) change any provision of its Articles of
Incorporation or Bylaws, or take any other action with respect
thereto;
(b) change the number of shares of its issued capital stock or
issue or grant any option, warrant, call, commitment, subscription,
right to purchase or agreement of any character relating to its
authorized or issued capital stock, or any securities convertible into
shares of such stock, or split, combine or reclassify any shares of its
capital stock, or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock or redeem or otherwise acquire
any shares of such capital stock;
(c) hire any officer;
(d) grant any severance or termination pay (which is payable
after the calendar month end prior to the Closing) to, or enter into or
amend any severance or employment agreement with, any of its directors,
officers or employees or adopt any new employee benefit plan or
arrangement of any type;
(e) sell or dispose of any assets (other than real
estate owned by Banyan) or incur any liabilities, in either
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case in excess of $10,000 in the aggregate, other than deposit
liabilities acquired in the ordinary course of its business consistent
with past practices and policies;
(f) make any capital expenditure in excess of (i) $5,000
per project or related series of projects or (ii) $25,000 in
the aggregate;
(g) file any applications or make any contract with
respect to branching or site location or relocation;
(h) engage in any transactions with its directors or officers,
other than the Oakland Park REO, the Sunday House mortgage and loans
which Banyan makes to such parties in the ordinary course of business;
(i) take any action, except as may be required by law,
regulation or judicial order, which could prevent the Merger;
(j) enter into or renew any employment or consulting
agreement or amend or otherwise modify any existing employment
or consulting agreements;
(k) increase the compensation or benefits of any of its
employees, officers or directors or pay any bonuses, directly
or indirectly, to any such persons;
(l) enter into, amend or renew any real estate lease;
(m) enter into, amend or renew any equipment lease;
(n) enter into any agreement not terminable at will by
it which requires the payment by it of an aggregate amount in
excess of $10,000;
(o) knowingly waive any material right;
(p) incur any material indebtedness for money owed,
other than in the ordinary course;
(q) mortgage, pledge or subject to any charge, lien,
claim or encumbrance any of its assets;
(r) make any material change in its accounting methods
or practices;
(s) amend or modify any employee retirement plans or
increase the amount of contributions to such plans; or
(t) agree or obligate itself to do any of the foregoing.
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4.5 CURRENT INFORMATION. During the period from the date of
this Agreement to the Closing, Sellers shall cause Banyan to promptly advise
Republic in writing of any information or fact that would make any
representation or warranty or any statement in this Agreement or in the
Schedules not true and correct if such information or fact had been known when
the representation, warranty or statement was made. Republic shall have 10 days
from receipt thereof to terminate this Agreement in accordance with Section 8.3
hereof (without regard to the 15-day cure period provided in Section 8.3(c)
hereof) or else such right to terminate, as a result of the information
disclosed in the writing, shall be deemed waived.
4.6 COOPERATION WITH REPUBLIC. Sellers agree to cause Banyan
to cooperate with Republic in the preparation of all applications and regulatory
filings and will furnish promptly upon written request all documents,
information, financial statements or other materials as may be required in order
to complete such applications.
4.7 FUTURE FINANCIAL STATEMENTS. Sellers shall cause Banyan to
deliver to Republic, within 20 days after the end of each calendar month from
the month of July 1995 through the Closing Date, its unaudited statements of
financial condition as of the end of such month and its statements of operations
for the period from January 1, 1995 through the month then ended. All of the
financial statements hereinabove referred to in this Section 4.7 are hereinafter
referred to as the "Future Financial Statements". The Future Financial
Statements shall be prepared in accordance with GAAP on a basis consistent with
the Interim Statements. The Future Financial Statements so delivered after the
date hereof shall be accompanied by a certificate of a duly authorized officer
certifying that, to the best of his knowledge, such statements are complete,
true and accurate and that they have been prepared in accordance with GAAP, and
on a basis consistent with the Interim Statements.
4.8 OBSERVER AT MEETINGS. Unless prohibited by law, Sellers
agree to cause Banyan to permit the President and/or Executive Vice President of
Republic to attend, as an observer, all meetings of its shareholders, Board of
Directors and committees of the Board of Directors, including loan committees,
which may be held from the date hereof through the Closing. Sellers shall cause
Banyan to provide Republic with the same notice of all such meetings which is
given to shareholders or directors, as the case may be, and with copies of all
materials and documents distributed at such meetings. Republic shall maintain
the strict confidentiality of all matters observed at such meetings; provided,
however, Republic may discuss such matters with officers, directors, legal
counsel and advisors of Republic and may disclose such matters publicly if
obligated to do so by law.
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ARTICLE V
COVENANTS OF REPUBLIC
5.1 PURSUIT OF APPROVALS. Republic will use its best efforts
to obtain all necessary government approvals and any other regulatory approvals
which may be required and to do all other things which are or may be necessary
to consummate the Purchase and the Merger and will cooperate with Banyan in the
preparation of all applications and will furnish promptly upon written request
all documents, information, financial statements or other materials as may be
required in order to complete such applications. Banyan will be provided the
opportunity to review and approve in advance all information relating to it
which appears in any filing made with, or written material submitted to any
third party or governmental body in connection with the transactions
contemplated by this Agreement.
5.2 PUBLIC OFFERING. The parties acknowledge that RSFC will be
using its best efforts to prepare and file a registration statement on Form S-2
under the Securities Act of 1933 to register an underwritten public offering of
equity securities in an aggregate amount, net of estimated commissions,
discount, fees and expenses of the offering, of not less than $10,000,000 and to
pursue effectiveness of the registration statement and closing of the offering;
provided, however, that RSFC shall not be obligated to pursue such effectiveness
or to make the offering in the event RSFC, in its sole judgment, determines
that, at the time RSFC is to enter into a firm commitment underwriting agreement
for such public offering, the price per share of securities to be offered by
RSFC, the discount and terms offered by RSFC's underwriter or general market
conditions are not in the best interests of Republic's existing shareholders.
Sellers agree to cause Banyan to provide, and to engage McGladrey & Xxxxxx to
provide (at RSFC's expense), such financial and other information and consents,
in a timely fashion, as RSFC or RSFC's underwriters or counsel deems appropriate
with respect to Banyan for use in such registration statement.
ARTICLE VI
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF REPUBLIC AND SELLERS
The obligations of Republic and Sellers to close the Purchase
are subject to the fulfillment prior to or at the Closing of the following
conditions:
6.1 GOVERNMENT APPROVALS. (a) The receipt of all
government approvals required to be received to consummate the
Purchase and the Merger shall have been received, without the
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imposition of conditions which would, in the reasonable determination of
Republic, (i) have a material adverse effect on the financial condition,
properties, business or operations of Republic upon completion of the Merger, or
(ii) otherwise impair the value of Banyan to Republic; (b) such government
approvals shall remain in effect; (c) all applicable statutory waiting or notice
periods with respect to such government approvals shall have expired; and (d)
all conditions and requirements prescribed by law or by such government
approvals shall have been satisfied to the extent required prior to the Closing.
6.2 NO LITIGATION. No order, judgment or decree shall be
outstanding against a party hereto or a third party that would have the effect
of preventing consummation of the Purchase or the Merger; no suit, action or
other proceeding shall be pending or, to the knowledge of any party hereto,
threatened by any governmental body in which it is sought to restrain or
prohibit the Purchase and the Merger; and no suit, action or other proceeding
shall be pending before any court or governmental agency in which it is sought
to restrain or prohibit the Purchase and the Merger or obtain other substantial
monetary or other relief against one or more of the parties hereto in connection
with this Agreement and which Republic or Sellers determine in good faith, based
upon the advice of their respective counsel, makes it inadvisable to proceed
with the Purchase and the Merger because any such suit, action or proceeding has
a significant potential to be resolved in such a way as to deprive the party
electing not to proceed of any of the material benefits to it of the Purchase
and the Merger or to have a material adverse effect on the business or financial
condition of such party.
6.3 AUTHORITY TO CLOSE. Republic shall have furnished the
Principals with such certificates of its officers, an opinion of counsel to
Republic (such opinion to be as to Republic to the same extent as set forth in
Section 7.7 as to Banyan) and such documents, as the Principals may reasonably
request, to confirm that all governmental, Board of Director and shareholder
approvals necessary for Republic to consummate the Purchase and the Merger have
been obtained and that the Purchase does not violate its Articles of
Incorporation, Bylaws or applicable contract provisions.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF REPUBLIC
The obligation of Republic to close the Purchase is subject to
the fulfillment of each of the following conditions prior to or at the Closing,
or waiver thereof by Republic:
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7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. Each of
the obligations of Banyan and Sellers required to be performed by it or them at
or prior to the Closing pursuant to the terms of this Agreement, including
pursuant to Section 10.1 hereof, shall have been duly performed and complied
with in all material respects and the representations and warranties of the
Principals contained in this Agreement shall be true and correct in all material
respects as of the date of this Agreement, and as of the Closing as though made
at and as of the Closing, except for those representations and warranties
specifically relating to a time or times other than the Closing which shall be
true and correct in all material respects at such time or times and except for
changes permitted by this Agreement with the same force and effect as if made at
and as of the Closing.
7.2 MATERIAL CHANGE. There shall not have occurred a
material adverse change in Banyan, its business, financial
condition or prospects since December 31, 1994.
7.3 FINANCIAL CONDITIONS. The interim consolidated balance
sheet of Banyan for the calendar month end immediately prior to the Closing
Date, and as of the Closing Date, shall reflect total assets of not less than
$45,000,000, classified assets of not more than $900,000, allowance for loan
losses of not less than 1% of total assets and non-performing assets of not more
than 1% of total assets.
7.4 100% PURCHASE. All, and not less than all, of the Shares
shall be tendered for purchase by Republic at the Closing. Republic shall not be
obligated to purchase any of the Shares if, for any reason (whether or not
within the control of any Seller), one or more of the Shares is not available
for purchase by Republic at the Closing. Each of the holders of options to
purchase shares of Banyan Common Stock, as described on Schedule 2.2 hereof,
shall have terminated and surrendered his or her options and executed and
delivered to Banyan and Republic a full release of all claims of every kind and
nature which he or she may have with respect to all such options.
7.5 PUBLIC OFFERING. The RSFC underwritten public offering
referred to in Section 5.2 hereof shall have closed and RSFC shall have received
net proceeds thereof of not less than $10,000,000.
7.6 ACCOUNTANTS' COMFORT LETTER. Republic shall have received
the letter of McGladrey & Xxxxxx, dated the Closing Date, to the effect that,
based on agreed-upon procedures, nothing has come to their attention which would
cause them to believe that the Tangible Equity, total assets, classified assets
and non-performing assets of Banyan as of the calendar month ended prior to the
Closing Date are not as reported by Banyan.
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7.7 OPINION OF COUNSEL. Republic shall have received at the
Closing an opinion, in form and substance reasonably satisfactory to counsel to
Republic, dated the date of the Closing, of counsel to Sellers and Banyan
acceptable to Republic, to the effect that:
(a) Banyan is a Florida chartered state bank duly organized
and validly existing under the laws of Florida and in good standing
with the State of Florida and the FDIC, and is duly qualified to do
business in each jurisdiction in which qualification is necessary.
Banyan has all material permits, licenses, orders and approvals of all
governmental or regulatory bodies required to conduct its business
under applicable state and federal laws and regulations.
(b) The authorized capital stock of Banyan conforms to the
description thereof contained in Section 2.2 of this Agreement. All of
the outstanding shares of Banyan Common Stock have been duly authorized
and validly issued and are fully paid and nonassessable, and the
shareholders of Banyan have no preemptive or other rights with respect
to any shares of the capital stock of Banyan. Banyan is not a party to
or bound by any contract, agreement or arrangement to issue, sell or
otherwise dispose of or redeem, purchase or otherwise acquire any of
its capital stock and there is no outstanding option, warrant or other
right to subscribe for or purchase, or contract, agreement or
arrangement with respect to, the Banyan Common Stock or other security
exercisable or convertible into any capital stock of Banyan.
(c) The execution, delivery and performance of this Agreement
by Banyan and consummation of the Purchase have been duly authorized
and approved by all requisite action of Banyan's Board of Directors and
its shareholders, if any. This Agreement has been duly executed and
delivered by, and constitutes valid and binding obligations of Sellers,
enforceable against each in accordance with its terms, subject to any
bankruptcy, insolvency, moratorium or other laws generally affecting
the enforcement of creditors' rights and by general principles of
equity. The consummation of the transactions contemplated by this
Agreement and the Closing the Purchase will not result in any breach or
violation of any provisions of its Articles of Incorporation or Bylaws,
result in a breach or violation of, or default under, any judgment,
decree, mortgage, agreement, indenture or other instrument material to
the business or financial condition of Banyan, violate any statute,
rule or regulation applicable to Banyan which would have a material
adverse effect on the business or financial condition of Banyan.
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(d) All approvals, consents and authorizations required to
permit the performance by Banyan of its obligations under this
Agreement and consummation of the transactions herein contemplated have
been obtained (whether from governmental authorities or other persons).
(e) Except as disclosed in such opinion, to the knowledge of
such counsel after due investigation, there is neither any litigation,
proceeding or governmental investigation pending or threatened that
challenges the validity or legality of the transactions contemplated by
this Agreement or the Purchase or which seeks or threatens to restrain,
enjoin or prohibit consummation of such transaction, nor any
litigation, proceeding, or governmental investigation pending or
threatened against or relating to Banyan or its respective properties
or business, or the transactions contemplated by this Agreement, which
will result in any liability material to the business or financial
condition of Banyan.
7.8 OFFICERS' CERTIFICATES. The Principals shall have
furnished Republic with such certificates of themselves or others and such other
documents to evidence the fulfillment of the conditions set forth in this
Article VII as Republic may reasonably request, including certification of the
names, addresses and numbers of shares of Banyan Common Stock held by Banyan
shareholders of record as of the Closing.
7.9 CONSENTS. Republic shall have received all necessary
consents to the transactions contemplated herein, including the Merger, required
by any agreement material to the operation or conduct of business of Banyan.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION BY MUTUAL CONSENT. This Agreement may
be terminated at any time prior to the Closing by mutual written
consent of Republic and the Principals.
8.2 TERMINATION BY SELLERS. The Principals may
terminate this Agreement on behalf of Sellers by written notice to
Republic, at any time prior to the Closing, if (a) any event occurs
such that a material condition set forth in Article VI hereof which
must be fulfilled before Sellers are obligated to consummate the
Purchase cannot be fulfilled (other than by reason of Sellers'
failure to comply with their obligations hereunder) and
nonfulfillment is not waived, expressly or by implication, by the
Principals; or (b) there shall have been a material default under
or a material breach or Republic's covenants hereunder. The
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Principals may also terminate this Agreement at any time after 12:00 midnight,
local time, February 29, 1996 (except as otherwise provided in Section 1.5
hereof), if all the conditions precedent to its obligations to effect the
Purchase shall not have been fulfilled by reason other than Sellers' failure to
comply with their obligations hereunder and the Closing shall not have been
effected on or prior to such date.
8.3 TERMINATION BY REPUBLIC. Republic may terminate this
Agreement by written notice to the Principals at any time prior to October 15,
1995, if as a result of the review by Republic of Banyan's loan portfolio,
assets, liabilities, books, records, business and prospects, Republic, in its
sole discretion, determines that the acquisition of Banyan by Republic is not
desirable or in the best interests of Republic's shareholders. Republic may
terminate this Agreement by written notice to the Principals at any time prior
to the Closing, if (a) any event occurs such that a condition set forth in
Articles VI or VII hereof which must be fulfilled before Republic is obligated
to consummate the Closing or cannot be fulfilled (other than by reason of
Republic's failure to comply with its obligations hereunder) and nonfulfillment
is not waived by Republic; (b) there shall have been a material default under or
a material breach of Seller's covenants hereunder; or (c) any representation or
warranty of Sellers shall no longer be true and correct as of any date and
remains not true and correct 15 days after notice thereof is given to the
Principals. Republic may also terminate this Agreement at any time after 12:00
midnight, local time, February 29, 1996 (except as otherwise provided in Section
1.5 hereof), if all the conditions precedent to their obligations to effect the
Closing shall not have been fulfilled by reason other than Republic's failure to
comply with its obligations hereunder and the Closing shall not have been
effected on or prior to such date.
8.4 EFFECT OF TERMINATION. If this Agreement is terminated,
this Agreement, except for this Section 8.4, which shall remain in full force
and effect, shall no longer be of any force or effect and there shall be no
liability hereunder on the part of any party or its directors, officers or
shareholders; provided that (i) if such termination results from breaches by
Sellers or the Principals of any representation, warranty or covenant hereunder,
then the Principals shall pay Republic liquidated damages in the amount of
$100,000 and (ii) if such termination results from breaches by Republic of any
representation or warranty or covenant hereunder, then RSFC and/or Republic
shall pay Sellers, pro rata, liquidated damages in the amount of $100,000. Each
of the parties hereto acknowledges and agrees that the actual amount of damages
suffered by him or it as a result of any such termination (including lost
opportunity costs) cannot be precisely calculated, that, in any event, the
amount of such actual damages suffered is less than the amount of liquidated
damages
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provided for in this Section 8.4 and that such amount of liquidated damages is
fair. The parties agree that the failure of RSFC to consummate the public
offering referred to in Section 5.2 hereof shall be deemed sufficient cause for
the Principals to terminate this Agreement in accordance with the last sentence
of Section 8.3 hereof, but shall not be deemed a breach resulting in liquidated
damages being payable to Sellers pursuant to this Section 8.4
8.5 EXTENSION OR WAIVER. At any time prior to the Closing,
either Republic or the Principals may (a) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties of the other party hereto
contained herein or in any document delivered pursuant hereto, or (c) waive
compliance with any of the agreements or conditions of the other parties hereto
contained herein. Any agreement on the part of any party hereto for any such
extension or waiver shall only be valid if set forth in a writing signed on
behalf of such party.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The parties
agree that the representations, warranties and covenants made by the Principals,
RSFC and Republic herein shall survive the Closing for a period of one year from
the Closing Date (the "Survival Period").
9.2 INDEMNIFICATION BY THE PRINCIPALS. Subject to the Closing
having occurred and the limitations of Section 9.5, each Principal hereby
agrees, jointly and severally, to protect, defend, indemnify and hold harmless
RSFC and Republic, and their successors and assigns, officers, directors,
shareholders and employees, representatives and agents (each, a "Purchaser
Indemnitee") from and against any and all demand, obligation, claim, loss,
expense, tax, legal action, judgment or damage and any interest or penalties
thereon ("Loss") suffered by a Purchaser Indemnitee in connection with or
arising out of or resulting from or incident to the following (which Loss shall
include, without limitation, costs and expenses of defending against the threat
of such Loss):
(a) any breach of any of the representations or warranties of,
or of any covenants or agreements made by, the Principals contained in
this Agreement and/or in any Schedule hereto or document delivered in
connection herewith; provided that a Loss shall be deemed to have been
suffered only if any such breach of a representation or warranty be in
regard to facts or circumstances to the knowledge of a Principal; and
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(b) any suit, action, investigation, inquiry or other
proceeding brought by a Seller, whether instituted before or after the
Closing which seeks to restrain or prohibit, or questions the validity
or legality of, or otherwise challenges the transactions contemplated
hereby.
9.3 INDEMNIFICATION BY RSFC AND REPUBLIC. Subject to the
Closing having occurred and the limitations of Section 9.5, each of RSFC and
Republic hereby, jointly and severally, agree to protect, defend, indemnify and
hold harmless each of the Sellers from and again any and all demand, obligation,
claim, loss, expense, tax, legal action, judgment or damage and any interest or
penalties thereon ("Loss") suffered by such Seller in connection with or arising
out of or resulting from or incident to the following (which Loss shall include,
without limitation, costs and expenses of defending against the threat of such
Loss):
(a) any breach of any of the representations or warranties of,
or of any covenants or agreements made by, RSFC or Republic contained
in this Agreement and/or in any Schedule hereto or document delivered
in connection herewith; provided that a Loss shall be deemed to have
been suffered only if any such breach of a representation or warranty
be in regard to facts or circumstances to the knowledge of the
President or Executive Vice President of RSFC or Republic; and
(b) any suit, action, investigation, inquiry or other
proceeding brought by a shareholder of RSFC, whether instituted before
or after the Closing which seeks to restrain or prohibit, or questions
the validity or legality of, or otherwise challenges the transactions
contemplated hereby.
9.4 CLAIMS PROCEDURE. In the case of any claim, demand, action
or proceeding for which indemnification is sought pursuant to Section 9.2 or
9.3, the party or parties seeking indemnification (the "Indemnitee") shall
promptly notify the party or parties against whom indemnification is sought
("Indemnitor") in writing of the existence and nature of such claim, demand,
action or proceeding; provided, however, that no failure or delay by the
Indemnitee in the performance of the foregoing shall reduce or otherwise affect
the obligation of Indemnitor to indemnify and hold the Indemnitee harmless. If
such claim, demand, action or proceeding is by a third Person (a "Claim"), the
Indemnitee hereby agrees that it shall give Indemnitor a reasonable opportunity
to defend the same or prosecute such action to conclusion or settlement
satisfactory to Indemnitor at its sole cost and expense and with counsel of
their own selection (who shall be approved by the Indemnitee, which approval
shall not be unreasonably withheld) and Indemnitor shall pay any resulting
settlements, judgments or decrees; provided, however, that the Indemnitee shall
at all times also have the right fully to participate in the defense at
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Indemnitee's sole cost and expense so long as such participation occurs without
hindering or impairing the defense of Indemnitor. If Indemnitor shall, within a
reasonable time after said notice, fail to defend, the Indemnitee shall have the
right, but not the obligation, and without waiving any rights against
Indemnitor, to undertake the defense of, and, in its sole discretion, to
compromise or settle the Claim on behalf, for the account, and at the risk and
expense, of Indemnitor and shall be entitled to collect the amount of any
settlement or judgment or decree and all costs and expenses (including, without
limitation, reasonable attorneys' fees) in connection therewith. If the Claim is
one that cannot by its nature be defended solely by Indemnitor, the Indemnitee
shall make available all information and assistance that Indemnitor may
reasonably request; provided, however, that any associated out-of-pocket
expenses shall be paid by Indemnitor.
9.5 LIMITATIONS ON INDEMNIFICATION.
(a) The indemnification provisions contained in this Article
IX shall survive the Closing; provided, however, that no indemnity
Claim may be made under this Article IX unless the party seeking
indemnification gives the other party notice of such Claim prior to the
end of the Survival Period (as defined in Section 9.1 above). Notice of
a Claim shall be considered to have been made timely under this Section
9.5 with respect to any matter if, prior to the end of the Survival
Period, the Indemnitee has given notice to Indemnitor of the general
nature of facts or circumstances that Indemnitee reasonably believes
may result in a Claim for indemnification under this Agreement, even if
the Loss relating to such Claim occurs after the end of the Survival
Period.
(b) Notwithstanding any other term or provision of this
Article IX, no Indemnitor shall be required to indemnify for a Loss to
the extent that such Loss has been reimbursed by the Indemnitee's
actual receipt of insurance proceeds. In the event that insurance does
not cover the full amount of the Loss, Indemnitor shall remain liable
for the difference between the insurance payment as described above and
the amount of the Loss, subject to the limitations set forth above.
(c) The maximum amount for which Xxxxxx X. Xxxxx shall be
liable pursuant to this Article IX shall be equal to the Cash Amount
paid at the Closing for 64,058 Shares. The maximum amount for which
Xxxxxxx X. Xxxxx shall be liable pursuant to this Article IX shall be
equal to the Cash Amount paid at the Closing for 114,800 Shares.
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(d) No Indemnitor shall be obligated to pay any amount under
this Article IX until the total amount of Loss suffered by the
Indemnitee shall exceed $30,000.
ARTICLE X
MISCELLANEOUS
10.1 SELLERS DEPOSIT RELATIONSHIP. Sellers hereby covenant and
agree to maintain certificates of deposit and/or savings and checking deposits
with Banyan through the Closing, and with Republic for at least one year after
the Closing, with an aggregate deposit balance of not less than $6,000,000. Each
Seller acknowledges that the covenant and agreement contained in this Section
10.1 is a material inducement to, and a necessary precondition for, RSFC and
Republic entering into this Agreement.
10.2 RELEASE OF XXXXXX X. XXXXX. In the event the Purchase and
the Merger are duly consummated, RSFC and Republic (and Banyan, if the Merger is
not consummated) agree that Xxxxxx X. Xxxxx shall be released of any liability
he may have to Republic (as successor to Banyan) resulting from his negligence,
errors and omissions acting in his capacity as general counsel to Banyan prior
to the Closing Date, to the extent that such negligence, errors and omissions
are not known to him to be errors and omissions as of the Closing Date.
10.3 EXPENSES. Whether or not the Purchase is consummated,
each of the parties will pay all of its own legal, accounting and other expenses
incurred in the preparation of this Agreement and the performance of the terms
and provisions of this Agreement. Republic shall be responsible for all of the
fees referred to in Section 5.2.
10.4 LEGAL FEES. In the event of litigation between any of the
parties to this Agreement with respect to enforcement of the provisions hereof,
the prevailing party in such litigation shall be entitled to recover its legal
fees and expenses from the other party to such litigation.
10.5 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement
supersedes all previous arrangements or understandings, whether written or oral,
and contains the entire agreement of the parties, with respect to the subject
matter hereof, except that the Confidentiality Agreement between Republic and
Banyan shall remain in full force and effect. This Agreement may be modified,
varied or otherwise amended only by a writing executed on behalf of each of the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the party against whom enforcement of such
waiver is sought. No waiver, course of dealing, delay in acting or other
purported waiver by any
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party of compliance with any provision of this Agreement shall be construed as a
continuing waiver, or as a waiver of any subsequent breach, of any such
provision or of any rights or remedies with respect thereto.
10.6 NOTICES. Any notice, request, election, or other
communication required or permitted to be given by any party under any provision
of this Agreement shall be in writing and shall be deemed to have been duly
given if delivered in person, by overnight courier or by facsimile transmission,
to the following address, or to such other address as any party shall designate
upon written notice to the other party pursuant to this Section 10.6:
If to Republic:
Republic Security Bank,
Federal Savings Bank
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxx X. Xxxxxx, President
and Chairman of the Board
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxxxx, Xxxxx & Xxxxxxx
5300 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No.: 000-000-0000
If to Sellers or any Principal:
Xxxxxx X. Xxxxx
x/x Xxxxxx Xxxx
Xxxxx 000
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Moyle, Flanigan, Xxxx, Xxxxxxxxxx
& Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No.: 000-000-0000
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10.7 RIGHTS UNDER THIS AGREEMENT; NONASSIGNABILITY. This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, but shall not be assignable by any party. Nothing
contained in this Agreement is intended to confer upon any person, other than
the parties to this Agreement and their respective successors, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
10.8 FORM OF THIS AGREEMENT. Captions to the various
provisions in this Agreement are for the convenience of the reader only and
shall not be construed as affecting the meaning or interpretation of any
provision of this Agreement. Terms used in the singular shall be read in the
plural, and vice versa, and terms used in the masculine gender shall be read in
the feminine or neuter gender, when the context so requires. This Agreement may
be executed in several counterparts, each of which shall be deemed an original,
but together shall constitute one and the same instrument.
10.9 GOVERNING LAW. This Agreement has been entered into
under, and shall be construed and enforced in accordance with, the
laws of the State of Florida.
10.10 PUBLIC ANNOUNCEMENTS. Republic and the Principals shall
each approve in advance the substance of and cooperate with each other in the
development and distribution of all news releases and other public information
disclosures with respect to this Agreement or any of the transactions
contemplated hereby, except as may be otherwise required by law or regulation.
10.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the several parties hereto on separate
counterparts, each of which when so executed shall be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
REPUBLIC SECURITY FINANCIAL
CORPORATION
By _______________________
Xxxx X. Xxxxxx,
President and
Chairman of the Board
[SEAL]
ATTEST:
----------------------
Xxxxxxx X. Xxxxxxx,
Assistant Secretary
REPUBLIC SECURITY BANK,
FEDERAL SAVINGS BANK
By _______________________
Xxxx X. Xxxxxx,
President and
Chairman of the Board
[SEAL]
ATTEST:
----------------------
Xxx X. Xxxxxxxx,
Assistant Secretary
SELLERS:
--------------------------
Xxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx, Trustee
U/D/T/ dated December 30, 1989
(SIGNATURES CONTINUED ON NEXT PAGE)
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--------------------------
J. Xxxxxxx Xxxxx
--------------------------
Xxxxxxxx X. Xxxxx
--------------------------
J. Xxxxxxx Xxxxx XXX
--------------------------
Xxxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxx, Xx.
--------------------------
Xxxxxxxxx Xxxxx
--------------------------
Xxxxxx X. Xxxxx, Trustee
U/D/T/ dated December 30, 1989
--------------------------
Xxxxxx X. Xxxxx Trust for the
Benefit of Xxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx Trust for the
Benefit of Xxxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx Trust for the
Benefit of Xxxxxxx X. Xxxxx
(SIGNATURES CONTINUED ON NEXT PAGE)
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--------------------------
Xxxxxx Xxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxx
--------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxxxxxxx X. Xxxxxxxxxx, UTAD 12/78
--------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxxxxxx X. Xxxxxxxxxx, UTAD 12/78
--------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxx X. Frdrikson, UTAD 12/78
--------------------------
Xxxxx X. Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx Custodian for
Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx Custodian for
Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx
(SIGNATURES CONTINUED ON NEXT PAGE)
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----------------------------
Xxxxxxx X. Xxxxx, Xx.,
Trustee for Xxxxxxxxx Xxxxx
----------------------------
Xxxxxxx X. Xxxxx, Xx.,
Trustee for Xxxxxxx Xxxxx
----------------------------
Xxxxxxxxx X. Xxxxxxx Trust
----------------------------
Xxxxxxxxx X. Xxxxxxx
Trustee for Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxxxx X. Xxxxxxx
Trustee for Xxxxxx Xxx Xxxxxxx
----------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxxxxxxx X. Xxxxxxxxxx, UTAD 12/89
----------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxxxxxx X. Xxxxxxxxxx, UTAD 12/89
----------------------------
Xxxx Xxxxxxxxxx Trustee,
Xxx X. Xxxxxxxxxx, UTAD 12/89
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