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EXHIBIT 10.4.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT (the "Amendment") is made and entered into this
____ day of March, 1998, by, between and among Republic Bancshares, Inc.
("Republic"), a Florida corporation; Republic Bank (the"Bank"), a Florida
chartered commercial bank; and Bankers Savings Bank, F.S.B., a federal savings
bank ("BSB"), and amends that certain Agreement and Plan of Merger dated Xxxxx
0, 0000 xxxxxxx Xxxxxxxx and BSB (the "Agreement").
W I T N E S S E T H
WHEREAS, the Agreement provides for the merger of BSB into and with the
Bank, as contemplated by Section 655.412 and Sections 658.41 through 658.45 of
the Florida Statutes, and by Part 552 of the Rules and Regulations of the Office
of Thrift Supervision; and
WHEREAS, the Bank, by this Amendment, joins into and becomes a party to
the Agreement as if originally named therein and as if an original signatory
thereto; and
WHEREAS, this Amendment, together with the Agreement, constitutes an
agreement and plan of merger for the purposes of Section 658.42 of the Florida
Statutes; and
WHEREAS, the Boards of Directors of Republic, the Bank and BSB have
approved the Agreement and this Amendment and the Merger contemplated hereby and
thereby, and Republic, in its capacity as sole shareholder of the Bank, has
approved the Agreement and this Amendment and the Merger contemplated hereby and
thereby;
NOW THEREFORE, in consideration of the mutual covenants, and subject
to the terms and conditions set forth below, the parties hereto agree as
follows:
1. RECITALS. The above recitals are true and correct, are
incorporated herein and are made a part of this Amendment
2. CONSTITUENT BANKS. The Bank is a commercial bank organized and
existing under the laws of the State of Florida with its principal office at 000
Xxxxxx Xxxxxx, X.X., Xx. Xxxxxxxxxx, Xxxxxxx 00000. A listing of each branch
office of the Bank is set forth on Exhibit "B" attached hereto. BSB is a savings
association organized and existing under the laws of the United States of
America, with its principal office at 0000 Xxxxx xx Xxxx Xxxx., Xxxxx Xxxxxx,
Xxxxxxx 00000.
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A listing of each branch office of BSB is set forth on Exhibit "C".
3. RESULTING STATE BANK. With respect to the resulting state bank the
parties hereto agree as follows:
A. Name. The name of the resulting state bank shall be Republic
Bank and the specific location of the proposed main office is 000 Xxxxxx Xxxxxx,
X.X., Xx. Xxxxxxxxxx, Xxxxxxx 00000. A list of each existing and proposed branch
office is attached hereto as Exhibit "D"
B. Directors. The names and addresses of each of the directors of
the resulting state bank who will serve until the next meeting of stockholders
at which directors are elected is attached hereto as Exhibit "E".
C. Executive Officers. The names and addresses of each of the
executive officers of the resulting state bank is attached hereto as Exhibit
"F".
D. Capital Stock. Republic currently has 20,000,000 shares of
$2.00 par value common stock authorized, of which 7,035,886 shares are
outstanding as of the date hereof. Republic also has 100,000 shares of preferred
stock authorized, of which 75,000 shares are outstanding as of the date hereof.
As of December 31, 1997, the Bank had retained earnings of $95,531,000.00.
E. Trust Powers. The Bank , as the resulting state bank, will
have trust powers. Currently the Bank's trust powers are inactive with the
Florida Department of Banking, subject to activation upon the filing of an
appropriate application and notice therefore.
F. Articles of Incorporation. The Articles of Incorporation of
the Bank shall continue to be the Articles of Incorporation of the resulting
bank following the effective date of the Merger. A copy of the Articles of
Incorporation is attached hereto as Exhibit "G".
4. TERMS AND CONDITIONS. On the effective date of the Merger, the
separate existence of BSB shall cease, and, except as otherwise set forth in the
Merger Agreement, the Bank shall succeed to all the rights, privileges,
immunities and franchises and all the property real, personal and mixed of BSB,
without the necessity for any separate transfer. The Bank shall then be
responsible and liable for all liabilities and obligations of BSB, and neither
the rights of creditors nor any liens on the property of BSB shall be impaired
by the Merger.
5. CONVERSION OF SHARES. The manner and basis of converting the
shares of BSB stock into shares of Republic stock is set forth in Article 2 of
the Agreement, which is incorporated herein by reference. Section 2.1(b) of the
Agreement is modified by adding the following at the end thereof:
(A) Republic agrees that any agreement to sell, or any actual
sale, of the real
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estate owned by BSB at 0000 Xxxxx xx Xxxx Xxx., Xxxxx Xxxxxx, Xxxxxxx (the
"Property") for a sales price in excess of $5.8 million will not constitute a
breach of any warranty, representation or covenant made by BSB contained in this
Agreement, nor will such events be asserted in any respect as a failure to
satisfy a condition that would permit Republic to refuse to close the
transactions contemplated by this Agreement.
(B) Republic acknowledges that in the event an agreement to sell
or the sale of the Property results in a different accounting treatment other
than a "pooling of interests", Republic may not assert such event as a cause or
condition that might permit it to refuse to close the transactions contemplated
by this Agreement.
(C) If BSB proposes to enter into a binding contract to sell the
Property, Republic will have (5) business days in which to review the terms
(other than the purchase price, which shall be subject to paragraph (A) above)
of the contract of sale, to conduct its due diligence with respect to the
proposed purchaser and to approve the purchase, which approval will not be
unreasonably withheld. If Republic has not notified BSB in writing of its
disapproval within such five (5) business day period, or if Republic has
notified BSB in writing of its approval within such period, BSB will be
authorized to enter into a binding contract with such purchaser.
(D) If BSB enters into a binding contract to sell the Property
prior to the Effective Time, the Appraised Value of Real Estate shall be the
sales price specified in the contract.
(E) If the Property is sold prior to the Effective Time, Republic
agrees that the Appraised Value of Real Estate shall be equal to the sales price
for the Property.
(F) For the purposes of this Agreement, the "sales price" shall be
equal to the gross sales price for the Property, before commissions and other
routine closing costs.
6. BYLAWS. The By-laws of the Bank shall continue to be its By-laws
following the Effective Date of the Merger.
7. DIRECTORS AND OFFICERS. The Directors and Officers of the Bank, on
the Effective Date of the Merger, shall continue as the Directors and Officers
of the Bank for the full unexpired terms of their offices and until their
successors have been elected or appointed.
8. APPROVAL. The Agreement, as amended by this Amendment, shall be
submitted for the approval of the shareholders of BSB in the manner provided by
the applicable laws of the State of Florida and the United States of America and
shall further be submitted for approval by the Florida Department of Banking,
the Federal Deposit Insurance Corporation and such other state or federal
regulatory agencies as state or federal law shall require.
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9. DISSENTING STOCKHOLDERS. In accordance with the provisions of
Section 655.414 (1)(e)
of the Florida Statutes, dissenting shareholders of BSB are entitled to the
rights set forth in Section 658.44(4) and (5) of the Florida Statutes. The
rights of dissenting shareholders of BSB are described in Section 2.5 of the
Merger Agreement.
10. NONCONFORMING ACTIVITIES. From and after the effective date of the
Merger, the Bank will not engage in any nonconforming activities, except to the
extent necessary to fulfill obligations existing prior to the Merger pursuant to
the provisions of Section 655.418(4) of the Florida Statutes.
11. EFFECTIVE DATE OF MERGER. Following satisfaction of the various
conditions specified in the Agreement, the Merger shall be consummated on the
date of the Closing and at the Effective Time, as such terms are defined in the
Agreement, as specified in the Certificate of Merger to be issued by the
Department of Banking and Finance of the State of Florida. The parties hereto
shall request the issuance of the Certificate of Merger with the effective date
therein to be as of such date and time.
12. CONVERSION OF DATA PROCESSING SYSTEM. A new Section 7.17 shall be
added to the Agreement as follows:
7.17 CONVERSION OF DATA PROCESSING SYSTEM. At the request
of Republic, and on or before Xxxxx 0, 0000, XXX shall notify its outside data
processing service provider of its intent to terminate its data processing
contract effective September 1, 1998. BSB shall take such steps as may be
reasonably requested by Republic to convert to the Bank's outside data
processing service provider, commencing upon termination of BSB's existing
contract, and to coordinate the transition of the data processing systems of BSB
to those of the Bank upon consummation of the Merger. In connection therewith,
the parties agree as follows:
(a) Termination by BSB of its data processing contract as provided
herein shall not constitute a breach of any warranty, representation or covenant
contained in the Agreement;
(b) In the event the transition to the data processing service of
the Bank results in increased costs over that provided in BSB's existing
contract (including, without limitations, start up fees, item processing costs,
conversion fees and expenses), Republic shall reimburse BSB for such costs upon
request. Such increased costs, to the extent they are incurred during a month
prior to the month in which regulatory approvals are received to consummate the
Merger, shall be treated as income of BSB for the purposes of Section 2.1(b) of
this Agreement;
(c) In the event the Agreement is terminated for any reason,
Republic and the Bank shall indemnify and hold BSB harmless from all costs,
liabilities and expenses (including costs resulting from customer claims)
incurred by BSB in (i) terminating such agreement or
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contract it may have entered into with the Bank's data processing service
provider, (ii) the resumption of data processing services from its current data
processing service provider or such other provider as it may reasonably select.
In connection therewith, Republic and the Bank shall take all reasonable steps
to assure that BSB continues to receive data processing services from the Bank's
data processing service provider for such time as may be required in order to
effect an orderly transition to a new provider.
(d) Nothwithstanding any other provision of this Agreement, the
provisions of this Section 7.17 shall survive the termination of this Agreement.
13. MISCELLANEOUS AMENDMENTS. The Agreement shall also be amended as
follows:
a. The reference to "Holland & Knight LLP" in Section 8.1(f) of the
Agreement shall be changed to "its respective counsel";
b. The reference to the phrase "Share Exchange" in Section 10.0(b) of
the Agreement shall be deleted, and all other references to "Share
Exchange" in Section 9.1 and elsewhere in the Agreement shall be
changed to "Merger; and
c. The following term (and its accompanying section reference) shall
be added to Section 10.0(b) of the Agreement:
"Merger Preamble
Property 2.1(b)
Sales price 2.1(b)"
14. CAPITALIZED TERMS. All of the capitalized terms in this Amendment
not defined herein shall have the same definitions and meanings as those set
forth in the Agreement.
15. AMENDMENT AND TERMINATION. The Agreement, as amended by this
Amendment, may be amended or terminated in accordance with the provisions on
amendment and termination set forth in the Agreement.
16. EXECUTION OF AGREEMENT. This Amendment may be executed in any
number of counterparts, and each counterpart shall constitute an original
instrument.
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17. APPLICABLE LAW. The Agreement, as amended by this Amendment,
shall be interpreted and governed by the laws of the State of Florida.
IN WITNESS WHEREOF, this Amendment is executed on behalf of the
parties hereto by their officers, sealed with their corporate seals, and
attested by their respective Secretaries pursuant to the authorizations of their
respective Boards of Directors on the date first above written.
REPUBLIC BANK
Attest
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------------------------- Xxxx X. Xxxxxxxx
Secretary President and Chief Executive Officer
Corporate Seal:
REPUBLIC BANCSHARES, INC.
Attest
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------------------------- Xxxx X. Xxxxxxxx
Secretary President and Chief Executive Officer
Corporate Seal:
BANKERS SAVINGS BANK, F.S.B
Attest:
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------------------------- Xxxxxxx Xxxxxxxxx
Secretary President and Chief Executive Officer
Corporate Seal:
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