Exhibit 2.2
AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of September 30, 2003 (this
"Amendment"), to the Stock Purchase Agreement, dated as of July 16, 2003 (the
"Agreement"), by and among Sterling Bancshares, Inc., a bank holding company
incorporated under the laws of the State of Texas ("Parent"), Sterling Bank, a
banking association chartered under the laws of the State of Texas ("Sterling"),
CMCR Holding Company, a Delaware corporation (the "Seller"; and, together with
Parent and Sterling, the "Sellers"), and RBC Mortgage Company, an Illinois
corporation (the "Purchaser").
WITNESSETH:
WHEREAS, the Sellers and the Purchaser have previously entered
into the Agreement;
WHEREAS, the Sellers and the Purchaser now wish to amend and
modify the agreement between the parties under the Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties, agreements and covenants hereinafter set
forth, Parent, Sterling, the Seller and the Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used but not
defined herein shall have the respective meanings ascribed to such terms in the
Agreement.
ARTICLE II
AMENDMENT OF THE AGREEMENT
Section 2.1. Amendment of Section 3.03(a) - Capital Stock of
the Company. Section 3.03(a) of the Agreement is hereby amended and restated as
set forth below:
"(a) The authorized capital stock of the Company consists of 5,000
shares of common stock, par value $1.00 per share, of which 5,000
shares are issued and outstanding. The Shares constitute all the issued
and outstanding shares of capital stock of the Company. The Shares have
been duly authorized and validly issued and are fully paid and
nonassessable. There are no outstanding subscriptions, options,
warrants, calls, or rights of conversion or other rights, agreements,
arrangements or commitments relating to the purchase or issuance of any
shares of common stock or any
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other capital stock of the Company obligating the Company or any of the
Sellers to issue or to sell any shares of common stock or any other
capital stock of the Company. There are no voting trusts, proxies, or
other agreements or understandings with respect to the voting of the
Shares."
Section 2.2. Amendment of Section 5.08(b) - Employee Benefits.
Section 5.08(b) of the Agreement is hereby amended and restated as set forth
below:
"Prior to the Closing, (i) the Company shall take all actions necessary
to terminate the Company's 401(k) Plan effective as of September 15,
2003, including adopting resolutions of the Company Board of Directors,
and (ii) effective as of the day prior to the Closing Date, Xxxxx
Xxxxxx shall resign as trustee of the Company's 401(k) Plan and
concurrently therewith the Purchaser shall designate a successor
trustee to assume the obligations of such trustee under the Company's
401(k) Plan."
Section 2.3. Amendment of Section 5.08(c) - Employee Benefits
Section 5.08(c) of the Agreement is hereby amended and restated as set forth
below:
"Prior to the Closing, the Company shall take, or cause to be taken,
all actions necessary, including obtaining any necessary written
consents and adopting resolutions of the Company Board of Directors, to
(i) fully vest all participants in their Company Contributions (as
defined in the Company's Deferred Compensation Plan) subaccounts under
the Company's Deferred Compensation Plan effective as of September 30,
2003 and (ii) "freeze" the Company's Deferred Compensation Plan
effective as of October 15, 2003 in two stages by (x) not allowing any
additional participants to participate in the Deferred Compensation
Plan as of September 30, 2003, (y) discontinuing Company Contributions
and credits to participants' Company Contributions subaccounts under
the Company's Deferred Compensation Plan as of September 30, 2003 and
(z) discontinuing all participant deferrals of compensation to the
Deferred Compensation Plan as of October 15, 2003."
Section 2.4. Amendment of Section 5.13 - Sellers' Names and
Marks. Section 5.13 of the Agreement is hereby amended and restated as set forth
below:
"No later than December 31, 2003, the Purchaser shall cause the Company
and each of its Subsidiaries to (a) change their legal names to names
that do not contain the word "Sterling" or any approximation thereof,
and (b) cease to use any and all trademarks, service marks, trade
names, logos, designs, variations or translations thereof owned by the
Sellers and their Affiliates (other than the Company and its
Subsidiaries) (collectively "Sellers' Marks") in all respects, and to
replace or remove Sellers' Marks on signage, advertising materials,
domain names, Internet addresses, e-mail addresses (provided that the
Purchaser (including the Company and its Subsidiaries after the
Closing) shall have the right to use the word "Sterling" in e-mail
addresses until March 31, 2004) and other materials. The Sellers shall
reasonably cooperate with the Purchaser (but shall have no obligation
to
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incur out-of-pocket expenses unless the Purchaser agrees to reimburse
the Sellers for such expenses) prior to the Closing in order to assist
the Purchaser in carrying out its obligations under the immediately
preceding sentence within the time frame specified. The Purchaser shall
ensure that the Company's and its Subsidiaries' use of the Sellers'
Marks shall at all times be at a quality standard commensurate with the
standard at which such marks were used prior to the Closing Date. The
Purchaser will cause the Company and its Subsidiaries to use the
Sellers' Marks in such a way as to not materially harm the goodwill
associated with the Sellers' Marks. To ensure that such quality is
maintained, the Purchaser shall allow representatives of the Sellers,
from time to time upon request by the Sellers, to discuss matters with
and obtain information from the Purchaser's (as well as the Company's
and its Subsidiaries') officers, directors, employees and attorneys.
The Purchaser shall not permit the Company and its Subsidiaries to use
the Sellers' Marks (or any other designation similar to the Sellers'
Marks) (i) in any manner inconsistent with the manner in which the
Sellers' Marks were used prior to the Closing Date, or (ii) in
advertising and promotional materials other than to maintain the status
quo with respect to the manner in which the Company currently uses such
marks. The Purchaser acknowledges and agrees that: (a) neither the
Purchaser nor the Company or its Subsidiaries shall acquire any
ownership rights to the Sellers' Marks by virtue of the rights granted
in this Section 5.13, (b) neither the Purchaser nor the Company or its
Subsidiaries shall acquire any other rights to the Sellers' Marks and
all goodwill and rights related to the use thereof shall inure to the
benefit of and on behalf of the Sellers, (c) the Purchaser shall not,
and shall cause the Company and its Subsidiaries not to, do anything
that impairs the ownership or any registration of the Sellers' Marks by
the Sellers, or any applications of the Sellers to register the
Sellers' Marks, or the validity of the Sellers' Marks, in each case
with respect to rights, registrations or applications in any country of
the world, and (d) the Purchaser shall not, and shall cause the Company
and its Subsidiaries not to, register or apply to register the Sellers'
Marks or any other designation similar thereto anywhere in the world.
The Purchaser agrees that the Sellers, in addition to any other
remedies available to them for any breach or threatened breach of this
Section, shall be entitled to seek a preliminary injunction, temporary
restraining order or other equivalent relief restraining the Purchaser,
the Company and its Subsidiaries from any such breach or threatened
breach."
Section 2.5. Amendment of Article V - Covenants. Article V of
the Agreement is hereby amended by adding new Sections 5.18 and 5.19 as set
forth below:
"Section 5.18 Post-Closing Mortgage Payments. In the event
that after the Closing any Investor or title company improperly sends
funds in respect of any Mortgage Loan to Sterling Bank in its capacity
as collateral agent for the Company ("Misdirected Funds"), Sterling
Bank shall receive and hold such Misdirected Funds in trust for U.S.
Bank National Association or such other entity as the Company may
direct (the "Successor Collateral Agent") and promptly remit such
Misdirected Funds to the
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Successor Collateral Agent by wire transfer to (i) ABA #000000000,
Account No. 104756215349 in the case of payments from Investors, or
(ii) ABA #000000000, Account No. 104756215356 in the case of funds
returned by title companies in respect of canceled Mortgage Loans;
provided, that to the extent that any amounts are owed to Sterling Bank
by the Company or its Subsidiaries relating to the Warehouse Credit
Agreement, then, to the extent that Sterling Bank has a legal right of
set-off, it shall be entitled to retain any Misdirected Funds up to the
amount owed under the Warehouse Credit Agreement and to apply such
Misdirected Funds that are the property of the Company or its
Subsidiaries to the account of the Company and its Subsidiaries if such
accounts are not otherwise paid.
Section 5.19 Funding. The Sellers shall continue all
operational funding of the business of the Company and its Subsidiaries
until the Purchaser takes over such funding responsibilities, which
shall occur on October 1, 2003."
Section 2.6. Amendment of Section 6.05(b)(ii) - Contests.
Section 6.05(b)(ii) of the Agreement is hereby amended by replacing the
third sentence of such section with the following sentence:
"The Purchaser shall keep the Sellers informed of the status of any
such audit or proceeding and shall provide the Sellers with a
reasonable opportunity to review and comment on any material written
correspondence received or proposed to be delivered with respect to the
tax position of the Company or any of its Subsidiaries in connection
with any such audit or proceeding."
Section 2.7. Amendment of Section 10.08 - Entire Agreement;
Construction. Section 10.08 of the Agreement is hereby amended by replacing the
words "Confidentiality Agreement between the Purchaser and the Sellers dated
June 24, 2003" with the words "Amended and Restated Mutual Confidentiality
Agreement, dated as of September 25, 2003, among the Purchaser, Parent and the
Seller".
ARTICLE III
MISCELLANEOUS
Section 3.1. Effectiveness. This Amendment shall become
effective on the date hereof.
Section 3.2. Descriptive Headings; Interpretation. The
headings contained in this Amendment are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Amendment. No rule
of construction against the draftsperson shall be applied in connection with the
interpretation or enforcement of this Amendment.
Section 3.3. Counterparts. This Amendment may be executed in
one or more counterparts, and by the different parties hereto in separate
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counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Section 3.4. Continuing Effect of Agreement. This Amendment
shall not constitute an amendment or waiver of any other provision of the
Agreement not expressly referred to herein. Except as expressly amended hereby,
the provisions of the Agreement are and shall remain in full force and effect.
Section 3.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH
JURISDICTION.
Section 3.6. Jurisdiction, Venue and Jury Trial Waiver.
(a) Any process against the Purchaser or the Sellers in, or in
connection with, any proceeding arising out of or relating to this Amendment or
any of the transactions contemplated by this Amendment may be served personally
or by certified mail at the addresses set forth in Section 10.03 of the
Agreement with the same effect as though served on it personally. Any and all
proceedings against any party to this Amendment arising out of this Amendment or
the transactions contemplated hereby may be brought in the United States
District Court for the Southern District of Texas or the United States District
Court for the Northern District of Illinois, and each party submits to and
accepts the non-exclusive jurisdiction of such courts for the purpose of any
such proceeding.
(b) ALL OF THE PARTIES HERETO IRREVOCABLY WAIVE ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, each of the Sellers and the Purchaser have
caused this Amendment to be duly executed as of the date first written above by
their respective officers thereunto duly authorized.
STERLING BANCSHARES, INC.
By: /s/ X. XXXXXX BRIDGWATER
----------------------------
Name: X. Xxxxxx Bridgwater
Title: President & CEO
STERLING BANK
By: /s/ X. XXXXXX BRIDGWATER
----------------------------
Name: X. Xxxxxx Bridgwater
Title: President & CEO
CMCR HOLDING COMPANY
By: /s/ XXXXXXXX X. XXXXXXXXXX
----------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: President
RBC MORTGAGE COMPANY
By: /s/ J. R. XXXX
----------------------------
Name:
Title: C.E.O.
