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EXHIBIT 2
Agreement and Plan of Merger, dated February 19, 1997, by
and between Seacoast Banking Corporation of Florida and Port St. Lucie National
Bank Holding Corp
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AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
SEACOAST BANKING CORPORATION OF FLORIDA
AND
PORT ST. LUCIE NATIONAL BANK HOLDING CORP.
DATED AS OF FEBRUARY 19, 1997
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TABLE OF CONTENTS
PAGE
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Parties ........................................................................................ 1
Preamble ........................................................................................ 1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER..................................................... 1
1.1 Merger......................................................................... 1
1.2 Time and Place of Closing...................................................... 1
1.3 Effective Time................................................................. 1
1.4 Bank Merger.................................................................... 2
ARTICLE 2 - TERMS OF MERGER...................................................................... 2
2.1 Charter........................................................................ 2
2.2 Bylaws......................................................................... 2
2.3 Directors and Officers......................................................... 2
ARTICLE 3 - MANNER OF CONVERTING SHARES.......................................................... 2
3.1 Conversion of Shares........................................................... 2
3.2 Anti-Dilution Provisions....................................................... 3
3.3 Shares Held by PSHC or Seacoast................................................ 3
3.4 Dissenting Shareholders........................................................ 3
3.5 Fractional Shares.............................................................. 3
3.6 Conversion of Stock Options; Restricted Stock.................................. 3
ARTICLE 4 - EXCHANGE OF SHARES................................................................... 5
4.1 Exchange Procedures............................................................ 5
4.2 Rights of Former PSHC Shareholders............................................. 5
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF PSHC............................................... 6
5.1 Organization, Standing, and Power.............................................. 6
5.2 Authority of PSHC; No Breach By Agreement...................................... 6
5.3 Capital Stock.................................................................. 7
5.4 PSHC Subsidiaries.............................................................. 7
5.5 SEC Filings; Financial Statements.............................................. 8
5.6 Absence of Undisclosed Liabilities............................................. 8
5.7 Absence of Certain Changes or Events........................................... 8
5.8 Tax Matters.................................................................... 8
5.9 Allowance for Possible Loan Losses............................................. 9
5.10 Assets......................................................................... 10
5.11 Intellectual Property.......................................................... 10
5.12 Environmental Matters.......................................................... 11
5.13 Compliance with Laws........................................................... 11
5.14 Labor Relations................................................................ 12
5.15 Employee Benefit Plans......................................................... 12
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5.16 Material Contracts............................................................. 13
5.17 Legal Proceedings.............................................................. 14
5.18 Reports........................................................................ 14
5.19 Statements True and Correct.................................................... 14
5.20 Accounting, Tax and Regulatory Matters......................................... 15
5.21 State Takeover Laws............................................................ 15
5.22 Charter Provisions............................................................. 15
5.23 Opinion of Financial Advisor................................................... 15
5.24 Board Recommendation........................................................... 15
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF Seacoast........................................... 16
6.1 Organization, Standing, and Power.............................................. 16
6.2 Authority; No Breach By Agreement.............................................. 16
6.3 Capital Stock.................................................................. 17
6.4 Seacoast Subsidiaries.......................................................... 17
6.5 SEC Filings; Financial Statements.............................................. 18
6.6 Absence of Undisclosed Liabilities............................................. 18
6.7 Absence of Certain Changes or Events........................................... 18
6.9 Allowance for Possible Loan Losses............................................. 19
6.10 Assets......................................................................... 19
6.11 Intellectual Property.......................................................... 19
6.12 [Reserved]..................................................................... 20
6.13 Compliance With Laws........................................................... 20
6.14 Legal Proceedings.............................................................. 20
6.15 Reports........................................................................ 20
6.16 Statements True and Correct.................................................... 21
6.17 Accounting, Tax and Regulatory Matters......................................... 21
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION............................................. 21
7.1 Affirmative Covenants of PSHC.................................................. 21
7.2 Negative Covenants of PSHC..................................................... 22
7.3 Covenants of Seacoast.......................................................... 24
7.4 Adverse Changes in Condition................................................... 24
7.5 Reports........................................................................ 24
ARTICLE 8 - ADDITIONAL AGREEMENTS................................................................ 25
8.1 Registration Statement; Proxy Statement; Shareholder Approval.................. 25
8.2 Nasdaq Listing................................................................. 25
8.3 Applications................................................................... 25
8.4 Filings with State Offices..................................................... 25
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8.5 Agreement as to Efforts to Consummate.......................................... 25
8.6 Investigation and Confidentiality.............................................. 26
8.7 Press Releases................................................................. 26
8.8 Certain Actions................................................................ 26
8.9 Accounting and Tax Treatment................................................... 27
8.10 State Takeover Laws............................................................ 27
8.11 Charter Provisions............................................................. 27
8.12 PSHC Meetings.................................................................. 27
8.13 Agreements of Affiliates....................................................... 27
8.14 Employee Benefits and Contracts................................................ 28
8.15 Indemnification................................................................ 28
8.16 Certain Policies of PSHC....................................................... 29
8.17 Nomination and Election of Directors........................................... 29
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE.................................... 30
9.1 Conditions to Obligations of Each Party........................................ 30
9.2 Conditions to Obligations of Seacoast.......................................... 31
9.3 Conditions to Obligations of PSHC.............................................. 32
ARTICLE 10 - TERMINATION......................................................................... 33
10.1 Termination.................................................................... 33
10.2 Effect of Termination.......................................................... 34
10.3 Non-Survival of Representations and Covenants.................................. 34
ARTICLE 11 - MISCELLANEOUS....................................................................... 34
11.1 Definitions.................................................................... 34
11.2 Expenses....................................................................... 41
11.3 Brokers and Finders............................................................ 41
11.4 Entire Agreement............................................................... 41
11.5 Amendments..................................................................... 42
11.6 Waivers........................................................................ 42
11.7 Assignment..................................................................... 42
11.8 Notices........................................................................ 42
11.9 Governing Law.................................................................. 43
11.10 Counterparts................................................................... 43
11.11 Captions; Articles and Sections................................................ 43
11.12 Interpretations................................................................ 43
11.13 Enforcement of Agreement....................................................... 43
11.14 Severability................................................................... 43
Signatures....................................................................................... 45
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LIST OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION
1. Bank Plan of Merger. (ss. 1.4).
2. Form of agreement of affiliates of PSHC. (xx.xx. 8.13,
9.2(g)).
3. Matters as to which Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx,
P.A. will opine. (ss. 9.2(d)).
4. Form of Director's Agreement. (ss. 9.2(h)).
5. Claims Letter. (ss. 9.2(i)).
6. Matters as to which Xxxxxx & Bird will opine. (ss. 9.3(d)).
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made
and entered into as of February 19, 1997, by and between SEACOAST BANKING
CORPORATION OF FLORIDA ("Seacoast"), a Florida corporation, and PORT ST. LUCIE
NATIONAL BANK HOLDING CORP.
("PSHC"), a Florida corporation.
PREAMBLE
The respective Boards of Directors of PSHC and Seacoast are
of the opinion that the transactions described herein are in the best interests
of the parties to this Agreement and their respective shareholders. This
Agreement provides for the acquisition of PSHC by Seacoast pursuant to the
merger of PSHC with and into Seacoast. At the effective time of such merger,
the outstanding shares of the capital stock of PSHC shall be converted into the
right to receive shares of the common stock of Seacoast (except as provided
herein). As a result, shareholders of PSHC shall become shareholders of
Seacoast and Seacoast shall continue to conduct the business and operations of
PSHC. The transactions described in this Agreement are subject to the approvals
of the shareholders of PSHC, the shareholders of Seacoast, the Board of
Governors of the Federal Reserve System, and the Office of the Comptroller of
the Currency, and the satisfaction of certain other conditions described in
this Agreement. It is the intention of the parties to this Agreement that the
Merger for federal income tax purposes shall qualify as a "reorganization"
within the meaning of Section 368(a) of the Internal Revenue Code, and for
accounting purposes shall qualify for treatment as a pooling of interests.
Certain terms used in this Agreement are defined in Section
11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties, intending to be legally bound, agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER1 - TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, PSHC shall be merged with and into Seacoast
in accordance with the provisions of, and with the effect provided in Sections
607.1101, 607.1103, 607.1105, 607.1106 and 607.1107 of the FBCA (the "Merger").
Seacoast shall be the Surviving Corporation resulting from the Merger and shall
continue to be governed by the Laws of the State of Florida. The Merger shall
be consummated pursuant to the terms of this Agreement, which has been approved
and adopted by the respective Boards of Directors of PSHC and Seacoast.
1.2 TIME AND PLACE OF CLOSING. The closing of the
transactions contemplated hereby (the "Closing") will take place at 9:00 A.M.
on the date that the Effective Time occurs (or the immediately preceding day if
the Effective Time is earlier than 9:00 A.M.), or at such other time as the
Parties, acting through their authorized officers, may mutually agree. The
Closing shall be held at such location as may be mutually agreed upon by the
Parties.
1.3 EFFECTIVE TIME. The Merger and other transactions
contemplated by this Agreement shall become effective on the date and at the
time the Articles of Merger reflecting the Merger shall become effective with
the Secretary of State of the State of Florida (the "Effective Time"). Subject
to the terms and conditions hereof, unless otherwise mutually agreed upon in
writing by the authorized officers of each Party, the Parties shall use their
reasonable efforts to cause the Effective Time to occur on the first business
day following the last to occur of (i) the effective date (including expiration
of any applicable waiting period) of the last required
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Consent of any Regulatory Authority having authority over and approving or
exempting the Merger, and (ii) the date on which the shareholders of PSHC and
Seacoast approve this Agreement to the extent such approval is required by
applicable Law; or such later date within 30 days thereof as may be mutually
agreed upon by Seacoast and PSHC.
1.4 BANK MERGER. After consummation of the Merger, PSN Bank
shall (at Seacoast's discretion) be merged with and into First National (the
"Bank Merger") in accordance with the provisions of and with the effect
provided in 12 U.S.C. 215a on terms and subject to the provisions of the Bank
Plan of Merger ("Bank Plan"), attached hereto as Exhibit 1. The Bank Plan shall
be executed and the transactions contemplated therein shall be consummated at
such time as Seacoast directs. PSHC shall vote all shares of capital stock of
PSN Bank in favor of the Bank Plan and the Bank Merger provided therein.
ARTICLE 2
TERMS OF MERGER2 - TERMS OF MERGER
2.1 CHARTER. The Articles of Incorporation of Seacoast in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation until duly amended or repealed.
2.2 BYLAWS. The Bylaws of Seacoast in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving Corporation
until duly amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of Seacoast in
office immediately prior to the Effective Time, together with two such
additional persons from PSHC's Board of Directors as may thereafter be elected,
shall serve as the directors of the Surviving Corporation from and after the
Effective Time in accordance with the Bylaws of the Surviving Corporation. The
officers of Seacoast in office immediately prior to the Effective Time,
together with such additional persons as may thereafter be elected, shall serve
as the officers of the Surviving Corporation from and after the Effective Time
in accordance with the Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES3 - MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any
action on the part of Seacoast, PSHC, or the shareholders of either of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) Each share of capital stock of Seacoast issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(b) Each share of PSHC Common Stock, excluding shares held by
any PSHC Entity or any Seacoast Entity, in each case other than in a
fiduciary capacity or as a result of debts previously contracted, and
excluding shares held by shareholders who perfect their statutory
dissenters' rights as provided in Section 3.4 issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding
and shall be converted into and exchanged for the right to receive
shares of Seacoast Common Stock in an amount equal to the Purchase Price
Per Share divided by the Seacoast Stock Price (the "Exchange Ratio");
provided, that, in the event that the Purchase Price Per Share shall be
less than $24.62 (the "Lower Threshold Price") then PSHC shall have the
right to terminate the Agreement.
(c) Each issued and outstanding PSHC Warrant shall be
converted into and exchanged for shares of Seacoast Common Stock based
upon the exchange ratio (the "Warrant Exchange Ratio") obtained
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by dividing (i) the difference between the Purchase Price Per Share
and $8.26 by (ii) the Seacoast Stock Price.
3.2 ANTI-DILUTION PROVISIONS. In the event Seacoast changes
the number of shares of Seacoast Common Stock issued and outstanding prior to
the Effective Time as a result of a stock split, stock dividend, or similar
recapitalization with respect to such stock and the record date therefor (in
the case of a stock dividend) or the effective date thereof (in the case of a
stock split or similar recapitalization for which a record date is not
established) shall be prior to the Effective Time, the Exchange Ratio and the
Warrant Exchange Ratio shall be proportionately adjusted. In the event Seacoast
changes the number of shares of Seacoast Common Stock issued and outstanding
prior to the Effective Time as a result of a stock split, stock dividend, or
similar recapitalization with respect to such stock and the record date
therefor (in the case of a stock dividend) or the effective date thereof (in
the case of a stock split or similar recapitalization for which a record date
is not established) shall be after the Exchange Ratio and the Warrant Exchange
Ratio have been determined in accordance with Sections 3.1(b) and (c) and prior
to the Effective Time, the Exchange Ratio and Warrant Exchange Ratio shall be
proportionately adjusted. In the event Seacoast changes the number of shares of
Seacoast Common Stock issued and outstanding prior to the Effective Time as a
result of a stock split, stock dividend, or similar recapitalization with
respect to such stock and the record date therefor (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or
similar recapitalization for which a record date is not established) shall be
prior to date on which the Exchange Ratio and the Warrant Exchange Ratio is
determined in accordance with Sections 3.1(b) and (c), (i) the Threshold Prices
shall be adjusted appropriately, and (ii) if necessary, the anticipated
Effective Time shall be postponed for an appropriate period of time agreed upon
by the parties in order for the Seacoast Stock Price to reflect the market
effect of such stock split, stock dividend, or similar recapitalization.
3.3 SHARES HELD BY PSHC OR SEACOAST. Each of the shares of
PSHC Common Stock held by any PSHC Entity or by any Seacoast Entity, in each
case other than in a fiduciary capacity or as a result of debts previously
contracted, shall be canceled and retired at the Effective Time and no
consideration shall be issued in exchange therefor.
3.4 DISSENTING SHAREHOLDERS. Any holder of shares of PSHC
Common Stock who perfects his dissenters' rights in accordance with and as
contemplated by Section 607.1301 et seq. of the FBCA shall be entitled to
receive the value of such shares in cash as determined pursuant to such
provision of Law; provided, that no such payment shall be made to any
dissenting shareholder unless and until such dissenting shareholder has
complied with the applicable provisions of the FBCA and surrendered to PSHC the
certificate or certificates representing the shares for which payment is being
made. In the event that after the Effective Time a dissenting shareholder of
PSHC fails to perfect, or effectively withdraws or loses, his right to
appraisal and of payment for his shares subject to Seacoast's consent in its
sole discretion, Seacoast shall issue and deliver the consideration to which
such holder of shares of PSHC Common Stock is entitled under this Article 3
(without interest) upon surrender by such holder of the certificate or
certificates representing shares of PSHC Common Stock held by him.
3.5 FRACTIONAL SHARES. Notwithstanding any other provision
of this Agreement, each holder of shares of PSHC Common Stock exchanged
pursuant to the Merger who would otherwise have been entitled to receive a
fraction of a share of Seacoast Common Stock (after taking into account all
certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fractional part of a share of
Seacoast Common Stock multiplied by the Seacoast Stock Price. No such holder
will be entitled to dividends, voting rights, or any other rights as a
shareholder in respect of any fractional shares.
3.6 CONVERSION OF STOCK OPTIONS; RESTRICTED STOCK.
(a) At the Effective Time, each option or other
Equity Right (excluding PSHC Warrants) to purchase shares of PSHC Common Stock
pursuant to stock options or stock appreciation rights ("PSHC Options") granted
by PSHC under the PSHC Stock Plan[s], which are outstanding at the Effective
Time, whether or not exercisable, shall be converted into and become rights
with respect to Seacoast Common Stock, and Seacoast shall assume each PSHC
Option, in accordance with the terms of the PSHC Stock Plan and stock option
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agreement by which it is evidenced, except that from and after the Effective
Time, (i) Seacoast and its Compensation Committee shall be substituted for PSHC
and the Committee of PSHC's Board of Directors (including, if applicable, the
entire Board of Directors of PSHC) administering such PSHC Stock Plan, (ii)
each PSHC Option assumed by Seacoast may be exercised solely for shares of
Seacoast Common Stock (or cash, if so provided under the terms of such PSHC
Option), (iii) the number of shares of Seacoast Common Stock subject to such
PSHC Option shall be equal to the number of shares of PSHC Common Stock subject
to such PSHC Option immediately prior to the Effective Time multiplied by the
Exchange Ratio, and (iv) the per share exercise price under each such PSHC
Option shall be adjusted by dividing the per share exercise price under each
such PSHC Option by the Exchange Ratio and rounding up to the nearest cent.
Notwithstanding the provisions of clause (iii) of the preceding sentence,
Seacoast shall not be obligated to issue any fraction of a share of Seacoast
Common Stock upon exercise of PSHC Options and any fraction of a share of
Seacoast Common Stock that otherwise would be subject to a converted PSHC
Option shall represent the right to receive a cash payment upon exercise of
such converted PSHC Option equal to the product of such fraction and the
difference between the market value of one share of Seacoast Common Stock at
the time of exercise of such Option and the per share exercise price of such
Option. The market value of one share of Seacoast Common Stock at the time of
exercise of an Option shall be the last sale price of such common stock on the
Nasdaq National Market (as reported by The Wall Street Journal or, if not
reported thereby, any other authoritative source selected by Seacoast) on the
last trading day preceding the date of exercise. In addition, notwithstanding
the provisions of clauses (iii) and (iv) of the first sentence of this Section
3.6(a), each PSHC Option which is an "incentive stock option" shall be adjusted
as required by Section 424 of the Internal Revenue Code, and the regulations
promulgated thereunder, so as not to constitute a modification, extension or
renewal of the option, within the meaning of Section 424(h) of the Internal
Revenue Code. Each of PSHC and Seacoast agrees to take all necessary steps to
effectuate the foregoing provisions of this Section 3.6, including using its
reasonable efforts to obtain from each holder of a PSHC Option any Consent or
Contract that may be deemed necessary or advisable in order to effect the
transactions contemplated by this Section 3.6. Anything in this Agreement to
the contrary notwithstanding, Seacoast shall have the right, in its sole
discretion, not to deliver the consideration provided in this Section 3.6 to a
former holder of a PSHC Option who has not delivered such Consent or Contract.
(b) As soon as practicable after the Effective Time,
Seacoast shall deliver to the participants in each PSHC Stock Plan an
appropriate notice setting forth such participant's rights pursuant thereto and
the grants subject to such PSHC Stock Plan shall continue in effect on the same
terms and conditions (subject to the adjustments required by Section 3.6(a)
after giving effect to the Merger), and Seacoast shall comply with the terms of
each PSHC Stock Plan to ensure, to the extent required by, and subject to the
provisions of, such PSHC Stock Plan, that PSHC Options which qualified as
incentive stock options prior to the Effective Time continue to qualify as
incentive stock options after the Effective Time. At or prior to the Effective
Time, Seacoast shall take all corporate action necessary to reserve for
issuance sufficient shares of Seacoast Common Stock for delivery upon exercise
of PSHC Options assumed by it in accordance with this Section 3.6. As soon as
practicable after the Effective Time, Seacoast shall file a registration
statement on Form S-3 or Form S-8, as the case may be (or any successor or
other appropriate forms), with respect to the shares of Seacoast Common Stock
subject to such options and shall use its reasonable efforts to maintain the
effectiveness of such registration statements (and maintain the current status
of the prospectus or prospectuses contained therein) for so long as such
options remain outstanding. With respect to those individuals who subsequent to
the Merger will be subject to the reporting requirements under Section 16(a) of
the Exchange Act, where applicable, Seacoast shall administer the PSHC Stock
Plan assumed pursuant to this Section 3.6 in a manner that complies with Rule
16b-3 promulgated under the Exchange Act to the extent the PSHC Stock Plan
complied with such rule prior to the Effective Time.
(c) All contractual restrictions or limitations on
transfer with respect to PSHC Common Stock awarded under the PSHC Stock Plans
or any other plan, program, Contract or arrangement of any PSHC Entity, to the
extent that such restrictions or limitations shall not have already lapsed
(whether as a result of the Merger or otherwise), and except as otherwise
expressly provided in such plan, program, Contract or arrangement, shall remain
in full force and effect with respect to shares of Seacoast Common Stock into
which such restricted stock is converted pursuant to Section 3.1.
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ARTICLE 4
EXCHANGE OF SHARES4 - EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. Promptly after the Effective
Time, Seacoast and PSHC shall cause the exchange agent selected by Seacoast
(the "Exchange Agent") to mail to each holder of record of a certificate or
certificates which represented shares of PSHC Common Stock immediately prior to
the Effective Time (the "Certificates") appropriate transmittal materials and
instructions (which shall specify that delivery shall be effected, and risk of
loss and title to such Certificates shall pass, only upon proper delivery of
such Certificates to the Exchange Agent). The Certificate or Certificates of
PSHC Common Stock so delivered shall be duly endorsed as the Exchange Agent may
require. In the event of a transfer of ownership of shares of PSHC Common Stock
represented by Certificates that are not registered in the transfer records of
PSHC, the consideration provided in Section 3.1 may be issued to a transferee
if the Certificates representing such shares are delivered to the Exchange
Agent, accompanied by all documents required to evidence such transfer and by
evidence satisfactory to the Exchange Agent that any applicable stock transfer
taxes have been paid. If any Certificate shall have been lost, stolen, mislaid
or destroyed, upon receipt of (i) an affidavit of that fact from the holder
claiming such Certificate to be lost, mislaid, stolen or destroyed, (ii) such
bond, security or indemnity as Seacoast and the Exchange Agent may reasonably
require and (iii) any other documents necessary to evidence and effect the bona
fide exchange thereof, the Exchange Agent shall issue to such holder the
consideration into which the shares represented by such lost, stolen, mislaid
or destroyed Certificate shall have been converted. The Exchange Agent may
establish such other reasonable and customary rules and procedures in
connection with its duties as it may deem appropriate. After the Effective
Time, each holder of shares of PSHC Common Stock (other than shares to be
canceled pursuant to Section 3.3 or as to which statutory dissenters' rights
have been perfected as provided in Section 3.4) issued and outstanding at the
Effective Time shall surrender the Certificate or Certificates representing
such shares to the Exchange Agent and shall promptly upon surrender thereof
receive in exchange therefor the consideration provided in Section 3.1,
together with all undelivered dividends or distributions in respect of such
shares (without interest thereon) pursuant to Section 4.2. To the extent
required by Section 3.5, each holder of shares of PSHC Common Stock issued and
outstanding at the Effective Time also shall receive, upon surrender of the
Certificate or Certificates, cash in lieu of any fractional share of Seacoast
Common Stock to which such holder may be otherwise entitled (without interest).
Seacoast shall not be obligated to deliver the consideration to which any
former holder of PSHC Common Stock is entitled as a result of the Merger until
such holder surrenders such holder's Certificate or Certificates for exchange
as provided in this Section 4.1. Any other provision of this Agreement
notwithstanding, neither Seacoast nor the Exchange Agent shall be liable to a
holder of PSHC Common Stock for any amounts paid or property delivered in good
faith to a public official pursuant to any applicable abandoned property,
escheat or similar Law. Adoption of this Agreement by the shareholders of PSHC
shall constitute ratification of the appointment of the Exchange Agent.
4.2 RIGHTS OF FORMER PSHC SHAREHOLDERS. At the Effective
Time, the stock transfer books of PSHC shall be closed as to holders of PSHC
Common Stock immediately prior to the Effective Time and no transfer of PSHC
Common Stock by any such holder shall thereafter be made or recognized. Until
surrendered for exchange in accordance with the provisions of Section 4.1, each
Certificate theretofore representing shares of PSHC Common Stock (other than
shares to be canceled pursuant to Sections 3.3 and 3.4) shall from and after
the Effective Time represent for all purposes only the right to receive the
consideration provided in Sections 3.1 and 3.5 in exchange therefor, subject,
however, to the Surviving Corporation's obligation to pay any dividends or make
any other distributions with a record date prior to the Effective Time which
have been declared or made by PSHC in respect of such shares of PSHC Common
Stock in accordance with the terms of this Agreement and which remain unpaid at
the Effective Time. Whenever a dividend or other distribution is declared by
Seacoast on the Seacoast Common Stock, the record date for which is at or after
the Effective Time, the declaration shall include dividends or other
distributions on all shares of Seacoast Common Stock issuable pursuant to this
Agreement, but beginning 45 days after the Effective Time, no dividend or other
distribution payable to the holders of record of Seacoast Common Stock as of
any time subsequent to the Effective Time shall be delivered to the holder of
any Certificate until such holder surrenders such Certificate for exchange as
provided in Section 4.1. However, upon surrender of such Certificate, both the
Seacoast Common Stock certificate (together with all such undelivered
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dividends or other distributions, without interest) and any undelivered
dividends and cash payments payable hereunder (without interest) shall be
delivered and paid with respect to each share represented by such Certificate.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PSHCPSHC
PSHC hereby represents and warrants to Seacoast as follows:
5.1 ORGANIZATION, STANDING, AND POWER. PSHC is a
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Florida, and has the corporate power and authority to
carry on its business as now conducted and to own, lease and operate its
Assets. PSHC is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a PSHC Material
Adverse Effect. The minute books and other organizational documents and
corporate records for PSHC have been made available to Seacoast for its review
and, except as disclosed in Section 5.1 of the PSHC Disclosure Memorandum, are
true and complete in all material respects as in effect as of the date of this
Agreement and accurately reflect in all material respects all amendments
thereto and all proceedings of the Board of Directors and shareholders thereof.
5.2 AUTHORITY OF PSHC; NO BREACH BY AGREEMENT.
(a) PSHC has the corporate power and authority
necessary to execute, deliver, and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated herein, including the Merger, have been duly and
validly authorized by all necessary corporate action in respect thereof on the
part of PSHC, subject to the approval of this Agreement by the holders of a
majority of the outstanding shares of PSHC Common Stock, which is the only
shareholder vote required for approval of this Agreement and consummation of
the Merger by PSHC. Subject to such requisite shareholder approval, this
Agreement represents a legal, valid, and binding obligation of PSHC,
enforceable against PSHC in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
may be brought).
(b) Neither the execution and delivery of this
Agreement by PSHC, nor the consummation by PSHC of the transactions
contemplated hereby, nor compliance by PSHC with any of the provisions hereof,
will (i) conflict with or result in a breach of any provision of PSHC's
Articles of Incorporation or Bylaws or the certificate or articles of
incorporation or bylaws of any PSHC Subsidiary or any resolution adopted by the
board of directors or the shareholders of any PSHC Entity, or (ii) except as
disclosed in Section 5.2 of the PSHC Disclosure Memorandum, constitute or
result in a Default under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any PSHC Entity under, any Contract or
Permit of any PSHC Entity, where such Default or Lien, or any failure to obtain
such Consent, is reasonably likely to have, individually or in the aggregate, a
PSHC Material Adverse Effect or where such event would cause a breach hereof or
a Default hereunder, or, (iii) subject to receipt of the requisite Consents
referred to in Section 9.1(b), constitute or result in a Default under, or
require any Consent pursuant to, any Law or Order applicable to any PSHC Entity
or any of their respective material Assets (including any Seacoast Entity or
any PSHC Entity becoming subject to or liable for the payment of any Tax or any
of the Assets owned by any Seacoast Entity or any PSHC Entity being reassessed
or revalued by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and securities
Laws, and rules of the NASD, and other than Consents required
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from Regulatory Authorities, and other than notices to or filings with the
Internal Revenue Service or the Pension Benefit Guaranty Corporation with
respect to any employee benefit plans, or under the HSR Act, and other than
Consents, filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a PSHC Material
Adverse Effect, no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by PSHC of the Merger and the other
transactions contemplated in this Agreement.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of PSHC consists of
(i) 10,000,000 shares of PSHC Common Stock, of which 744,655 shares are issued
and outstanding as of the date of this Agreement and assuming the issue and
exercise of all issued and outstanding warrants and options to purchase
201,298.625 shares of PSHC Common Stock, not more than 945,954 shares will be
issued and outstanding at the Effective Time, and (ii) no shares of preferred
stock are authorized, issued or outstanding. All of the issued and outstanding
shares of capital stock of PSHC are duly and validly issued and outstanding and
are fully paid and nonassessable under the FBCA. None of the outstanding shares
of capital stock of PSHC has been issued in violation of any preemptive rights
of the current or past shareholders of PSHC.
(b) Except as set forth in Section 5.3(a), or as
disclosed in Section 5.3(b) of the PSHC Disclosure Memorandum, there are no
shares of capital stock or other equity securities of PSHC outstanding and no
outstanding Equity Rights relating to the capital stock of PSHC.
5.4 PSHC SUBSIDIARIES. PSHC has disclosed in Section 5.4
of the PSHC Disclosure Memorandum all of the PSHC Subsidiaries that are
corporations (identifying its jurisdiction of incorporation, each jurisdiction
in which it is qualified and/or licensed to transact business, and the number
of shares owned and percentage ownership interest represented by such share
ownership) and all of the PSHC Subsidiaries that are general or limited
partnerships, limited liability companies, trusts or other non-corporate
entities (identifying the Law under which such entity is organized, each
jurisdiction in which it is qualified and/or licensed to transact business, the
type of entity the type of entity and the amount and nature of the ownership
interest therein). Except as disclosed in Section 5.4 of the PSHC Disclosure
Memorandum, PSHC or one of its wholly-owned Subsidiaries owns all of the issued
and outstanding shares of capital stock (or other equity interests) of each
PSHC Subsidiary. No capital stock (or other equity interest) of any PSHC
Subsidiary is or may become required to be issued (other than to another PSHC
Entity) by reason of any Equity Rights, and there are no Contracts by which any
PSHC Subsidiary is bound to issue (other than to another PSHC Entity)
additional shares of its capital stock (or other equity interests) or Equity
Rights or by which any PSHC Entity is or may be bound to transfer any shares of
the capital stock (or other equity interests) of any PSHC Subsidiary (other
than to another PSHC Entity). There are no Contracts relating to the rights of
any PSHC Entity to vote or to dispose of any shares of the capital stock (or
other equity interests) of any PSHC Subsidiary. All of the shares of capital
stock (or other equity interests) of each PSHC Subsidiary held by a PSHC Entity
are fully paid and (except pursuant to 12 USC Section 55 in the case of
national banks and comparable, applicable state Law, if any, in the case of
state depository institutions) nonassessable under the applicable corporation
Law of the jurisdiction in which such Subsidiary is incorporated or organized
and are owned by the PSHC Entity free and clear of any Lien. Except as
disclosed in Section 5.4 of the PSHC Disclosure Memorandum, each PSHC
Subsidiary is either a bank, a savings association, or a corporation, and each
such Subsidiary is duly organized, validly existing, and (as to corporations)
in good standing under the Laws of the jurisdiction in which it is incorporated
or organized, and has the corporate power and authority necessary for it to
own, lease, and operate its Assets and to carry on its business as now
conducted. Each PSHC Subsidiary is duly qualified or licensed to transact
business as a foreign corporation in good standing in the States of the United
States and foreign jurisdictions where the character of its Assets or the
nature or conduct of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so qualified or
licensed is not reasonably likely to have, individually or in the aggregate, a
PSHC Material Adverse Effect. Each PSHC Subsidiary that is a depository
institution is an "insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, and the deposits in which
are insured by the Bank Insurance Fund. The minute books, and other
organizational and corporate documents for each PSHC Subsidiary have been made
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available to Seacoast for its review, and, except as disclosed in Section 5.4
of the PSHC Disclosure Memorandum, are true and complete in all material
respects as in effect as of the date of this Agreement and accurately reflect
in all material respects all amendments thereto and all proceedings of the
Board of Directors, all committees of the Board of Directors and shareholders
thereof.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) PSHC has timely filed and made available to
Seacoast, all SEC Documents required to be filed by PSHC since December 31,
1992 (the "PSHC SEC Reports"). The PSHC SEC Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Laws and other applicable Laws and (ii) did not, at the time they
were filed (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
PSHC SEC Reports or necessary in order to make the statements in such PSHC SEC
Reports, in light of the circumstances under which they were made, not
misleading. No PSHC Subsidiary is required to file any SEC Documents.
(b) Each of the PSHC Financial Statements
(including, in each case, any related notes) contained in the PSHC SEC Reports,
including any PSHC SEC Reports filed after the date of this Agreement until the
Effective Time, complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited interim statements, as permitted by
Form 10-Q of the SEC), and fairly presented in all material respects the
consolidated financial position of PSHC and its Subsidiaries as at the
respective dates and the consolidated results of operations and cash flows for
the periods indicated, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments which were not
or are not expected to be material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Absence of
No PSHC Entity has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a PSHC Material Adverse Effect, except
Liabilities which are accrued or reserved against in the consolidated balance
sheets of PSHC as of December 31, 1995 and September 30, 1996, included in the
PSHC Financial Statements delivered prior to the date of this Agreement or
reflected in the notes thereto. Except as set forth in Section 5.6 of the PSHC
Disclosure Memorandum, no PSHC Entity has incurred or paid any Liability since
September 30, 1996, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business practice and which
are not reasonably likely to have, individually or in the aggregate, a PSHC
Material Adverse Effect or (ii) in connection with the transactions
contemplated by this Agreement.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December
31,1995, except as disclosed in the PSHC Financial Statements delivered prior
to the date of this Agreement or as disclosed in Section 5.7 of the PSHC
Disclosure Memorandum, (i) there have been no events, changes, or occurrences
which have had, or are reasonably likely to have, individually or in the
aggregate, a PSHC Material Adverse Effect, and (ii) the PSHC Entities have not
taken any action, or failed to take any action, prior to the date of this
Agreement, which action or failure, if taken after the date of this Agreement,
would represent or result in a material breach or violation of any of the
covenants and agreements of PSHC provided in Article 7.
5.8 TAX MATTERS.
(a) All Tax Returns required to be filed by or on
behalf of any of the PSHC Entities have been timely filed or requests for
extensions have been timely filed, granted, and have not expired for periods
ended on or before December 31, 1995, and on or before the date of the most
recent fiscal year end immediately preceding the Effective Time, except to the
extent that all such failures to file, taken together, are not reasonably
likely to have a PSHC Material Adverse Effect, and all Tax Returns filed are
complete and accurate in all material respects. All Taxes shown on filed Tax
Returns have been paid. As of the date of this Agreement, there is no
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audit examination, deficiency, or refund Litigation with respect to any Taxes,
except as reserved against in the PSHC Financial Statements delivered prior to
the date of this Agreement or as disclosed in Section 5.8 of the PSHC
Disclosure Memorandum. PSHC's federal income Tax Returns have not been audited
by the IRS. All Taxes and other Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid. There are no Liens
with respect to Taxes upon any of the Assets of the PSHC Entities, except for
any such Liens which are not reasonably likely to have a PSHC Material Adverse
Effect.
(b) None of the PSHC Entities has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other applicable
taxing authorities) that is currently in effect.
(c) The provision for any Taxes due or to become due
for any of the PSHC Entities for the period or periods through and including
the date of the respective PSHC Financial Statements that has been made and is
reflected on such PSHC Financial Statements is sufficient to cover all such
Taxes.
(d) Deferred Taxes of the PSHC Entities have been
provided for in accordance with GAAP.
(e) Except as disclosed in Section 5.8(e) of the
PSHC Disclosure Memorandum, none of the PSHC Entities is a party to any Tax
allocation or Tax sharing agreement and none of the PSHC Entities has been a
member of an affiliated group filing a consolidated federal income Tax Return
(other than a group the common parent of which was PSHC) has any Liability for
Taxes of any Person (other than PSHC and its Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or
foreign Law) as a transferee or successor or by Contract or otherwise.
(f) Except as disclosed in Section 5.8(f) of the
PSHC Disclosure Memorandum, each of the PSHC Entities is in compliance with,
and its records contain all information and documents (including properly
completed IRS Forms W-9) necessary to comply with, all applicable information
reporting and Tax withholding requirements under federal, state, and local Tax
Laws, and such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for such
instances of noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a PSHC Material Adverse Effect.
(g) Except as disclosed in Section 5.8 of the PSHC
Disclosure Memorandum, none of the PSHC Entities has made any payments, is
obligated to make any payments, or is a party to any Contract that could
obligate it to make any payments that would be disallowed as a deduction under
Section 280G or 162(m) of the Internal Revenue Code.
(h) There has not been an ownership change, as
defined in Internal Revenue Code Section 382(g), of the PSHC Entities that
occurred during or after any Taxable Period in which the PSHC Entities incurred
a net operating loss that carries over to any Taxable Period ending after
December 31,1995.
(i) No PSHC Entity has or has had in any foreign
country a permanent establishment, as defined in any applicable tax treaty or
convention between the United States and such foreign country.
5.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. In the opinion
of management of PSHC, the allowances for possible loan, credit or securities
losses (collectively, the "Allowance") shown on the consolidated balance sheets
of PSHC included in the most recent PSHC Financial Statements dated prior to
the date of this Agreement was, and the Allowance shown on the consolidated
balance sheets of PSHC included in the PSHC Financial Statements as of dates
subsequent to the execution of this Agreement will be, as of the dates thereof,
adequate (within the meaning of GAAP and applicable regulatory requirements or
guidelines) to provide for all
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known or reasonably anticipated losses relating to or inherent in the loan,
lease and securities portfolios (including accrued interest receivables) of the
PSHC Entities and other extensions of credit (including letters of credit and
commitments to make loans or extend credit) by the PSHC Entities as of the
dates thereof.
5.10 ASSETS.
(a) Except as disclosed in Section 5.10 of the PSHC
Disclosure Memorandum or as disclosed or reserved against in the PSHC Financial
Statements delivered prior to the date of this Agreement, the PSHC Entities
have good and marketable title, free and clear of all Liens, to all of their
respective Assets, except for any such Liens or other defects of title which
are not reasonably likely to have a PSHC Material Adverse Effect. Except as set
forth in Section 5.10 of the PSHC Disclosure Memorandum, all tangible
properties used in the businesses of the PSHC Entities are in good condition,
reasonable wear and tear excepted, and are usable in the ordinary course of
business consistent with PSHC's past practices.
(b) All Assets which are material to PSHC's business
on a consolidated basis, held under leases or subleases by any of the PSHC
Entities, are held under valid Contracts enforceable as to the PSHC Entity and
to the Knowledge of PSHC as to the counter-party to such Contracts in
accordance with their respective terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and each such Contract is in full force and effect.
(c) The PSHC Entities currently maintain insurance
similar in amounts, scope, and coverage to that maintained by other peer
banking organizations. None of the PSHC Entities has received notice from any
insurance carrier that (i) any policy of insurance will be canceled or that
coverage thereunder will be reduced or eliminated, or (ii) premium costs with
respect to such policies of insurance will be substantially increased. There
are presently no claims for amounts exceeding in any individual case $5,000, or
in the aggregate $100,000, pending under such policies of insurance and no
notices of claims in excess of such amounts have been given by any PSHC Entity
under such policies.
(d) The Assets of the PSHC Entities include all
Assets required to operate the business of the PSHC Entities as presently
conducted.
5.11 INTELLECTUAL PROPERTY. Except as disclosed in
Section 5.11 of the PSHC Disclosure Memorandum, each PSHC Entity owns or has a
license to use all of the Intellectual Property used by such PSHC Entity in the
course of its business. Each PSHC Entity is the owner of or has a license to
any Intellectual Property sold or licensed to a third party by such PSHC Entity
in connection with such PSHC Entity's business operations, and such PSHC Entity
has the right to convey by sale or license any Intellectual Property so
conveyed. No PSHC Entity is in Default under any of its Intellectual Property
licenses. No proceedings have been instituted, or are pending or to the
Knowledge of PSHC threatened, which challenge the rights of any PSHC Entity
with respect to Intellectual Property used, sold or licensed by such PSHC
Entity in the course of its business, nor has any person claimed or alleged any
rights to such Intellectual Property. The conduct of the business of the PSHC
Entities does not infringe any Intellectual Property of any other person.
Except as disclosed in Section 5.11 of the PSHC Disclosure Memorandum, no PSHC
Entity is obligated to pay any recurring royalties to any Person with respect
to any such Intellectual Property. Except as disclosed in Section 5.11 of the
PSHC Disclosure Memorandum, every officer, director, or employee of any PSHC
Entity is a party to a Contract which requires such officer, director or
employee to assign any interest in any Intellectual Property to a PSHC Entity
and to keep confidential any trade secrets, proprietary data, customer
information, or other business information of a PSHC Entity, and no such
officer, director or employee is party to any Contract with any Person other
than a PSHC Entity which requires such officer, director or employee to assign
any interest in any Intellectual Property to any Person other than a PSHC
Entity or to keep confidential any trade secrets, proprietary data, customer
information, or other business information of any Person other than a PSHC
Entity. Except as disclosed in Section 5.11 of the PSHC Disclosure Memorandum,
no officer, director or to the Knowledge of PSHC any employee of any PSHC
Entity is party to any
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Contract which restricts or prohibits such officer, director or employee from
engaging in activities competitive with any Person, including any PSHC Entity.
5.12 ENVIRONMENTAL MATTERS.
(a) To the Knowledge of PSHC, each PSHC Entity, its
Participation Facilities, and its Operating Properties are, and have been, in
compliance with all Environmental Laws, except for violations which are not
reasonably likely to have, individually or in the aggregate, a PSHC Material
Adverse Effect.
(b) There is no Litigation pending or, to the
Knowledge of PSHC, threatened before any court, governmental agency, or
authority or other forum in which any PSHC Entity or any of its Operating
Properties or Participation Facilities (or PSHC in respect of such Operating
Property or Participation Facility) has been or, with respect to threatened
Litigation, may be named as a defendant (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law or (ii) relating to
the release, discharge, spillage, or disposal into the environment of any
Hazardous Material, whether or not occurring at, on, under, adjacent to, or
affecting (or potentially affecting) a site owned, leased, or operated by any
PSHC Entity or any of its Operating Properties or Participation Facilities, nor
is there any reasonable basis for any Litigation of a type described in this
sentence.
(c) During the period of (i) any PSHC Entity's
ownership or operation of any of their respective current properties, (ii) any
PSHC Entity's participation in the management of any Participation Facility, or
(iii) any PSHC Entity's holding of a security interest in a Operating Property,
there have been no releases, discharges, spillages, or disposals of Hazardous
Material in, on, under, adjacent to, or affecting (or potentially affecting)
such properties; provided that with respect to the period set forth in (iii)
above, this representation shall be made to the Knowledge of PSHC. Prior to the
period of (i) any PSHC Entity's ownership or operation of any of their
respective current properties, (ii) any PSHC Entity's participation in the
management of any Participation Facility, or (iii) any PSHC Entity's holding of
a security interest in a Operating Property, to the Knowledge of PSHC, there
were no releases, discharges, spillages, or disposals of Hazardous Material in,
on, under, or affecting any such property, Participation Facility or Operating
Property.
5.13 COMPLIANCE WITH LAWS. PSHC is duly registered as a
bank holding company under the BHC Act. Each PSHC Entity has in effect all
Permits necessary for it to own, lease, or operate its material Assets and to
carry on its business as now conducted, except for those Permits the absence of
which are not reasonably likely to have, individually or in the aggregate, a
PSHC Material Adverse Effect, and there has occurred no Default under any such
Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a PSHC Material Adverse Effect. Except as
disclosed in Section 5.13 of the PSHC Disclosure Memorandum, none of the PSHC
Entities:
(a) is in Default under any of the provisions of its Articles
of Incorporation or Bylaws (or other governing instruments);
(b) is in Default under any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for Defaults which are not reasonably likely to have,
individually or in the aggregate, a PSHC Material Adverse Effect; or
(c) since January 1, 1993, has received any notification or
communication from any agency or department of federal, state, or
local government or any Regulatory Authority or the staff thereof (i)
asserting that any PSHC Entity is not in compliance with any of the
Laws or Orders which such governmental authority or Regulatory
Authority enforces, (ii) threatening to revoke any Permits, or (iii)
requiring any PSHC Entity to enter into or consent to the issuance of
a cease and desist order, formal agreement, directive, commitment, or
memorandum of understanding, or to adopt any Board resolution or
similar undertaking, which restricts materially the conduct of its
business or in any manner relates to its capital adequacy, its credit
or reserve policies, its management, or the payment of dividends.
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Copies of all material reports, correspondence, notices and other documents
relating to any inspection, audit, monitoring or other form of review or
enforcement action by a Regulatory Authority have been made available to
Seacoast.
5.14 LABOR RELATIONS. No PSHC Entity is the subject of
any Litigation asserting that it or any other PSHC Entity has committed an
unfair labor practice (within the meaning of the National Labor Relations Act
or comparable state law) or seeking to compel it or any other PSHC Entity to
bargain with any labor organization as to wages or conditions of employment,
nor is any PSHC Entity party to any collective bargaining agreement, nor is
there any strike or other labor dispute involving any PSHC Entity, pending or
to the Knowledge of PSHC is (i) any such strike or dispute threatened or (ii)
there any activity involving any PSHC Entity's employees seeking to certify a
collective bargaining unit or engaging in any other organization activity.
5.15 EMPLOYEE BENEFIT PLANS.
(a) PSHC has disclosed in Section 5.15 of the PSHC
Disclosure Memorandum, and has delivered or made available to Seacoast prior to
the execution of this Agreement copies in each case of, all pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, all other
written employee programs, arrangements, or agreements, all medical, vision,
dental, or other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee benefit plans" as
that term is defined in Section 3(3) of ERISA, currently adopted, maintained
by, sponsored in whole or in part by, or contributed to by any PSHC Entity or
ERISA Affiliate thereof for the benefit of employees, retirees, dependents,
spouses, directors, independent contractors, or other beneficiaries and under
which employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries are eligible to participate (collectively,
the "PSHC Benefit Plans"). Any of the PSHC Benefit Plans which is an "employee
pension benefit plan," as that term is defined in Section 3(2) of ERISA, is
referred to herein as a "PSHC ERISA Plan." Each PSHC ERISA Plan which is also a
"defined benefit plan" (as defined in Section 414(j) of the Internal Revenue
Code) is referred to herein as a "PSHC Pension Plan." No PSHC Pension Plan is
or has been a multiemployer plan within the meaning of Section 3(37) of ERISA.
(b) All PSHC Benefit Plans are in compliance with
the applicable terms of ERISA, the Internal Revenue Code, and any other
applicable Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a PSHC Material Adverse Effect. Each PSHC
ERISA Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and PSHC is not aware of any circumstances likely to
result in revocation of any such favorable determination letter. No PSHC Entity
has engaged in a transaction with respect to any PSHC Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
would subject any PSHC Entity to a Tax imposed by either Section 4975 of the
Internal Revenue Code or Section 502(i) of ERISA.
(c) No PSHC Pension Plan has any "unfunded current
liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the
fair market value of the assets of any such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of ERISA, when
determined under actuarial factors that would apply if the plan terminated in
accordance with all applicable legal requirements. Since the date of the most
recent actuarial valuation, there has been (i) no material change in the
financial position of any PSHC Pension Plan, (ii) no change in the actuarial
assumptions with respect to any PSHC Pension Plan, and (iii) no increase in
benefits under any PSHC Pension Plan as a result of plan amendments or changes
in applicable Law which is reasonably likely to have, individually or in the
aggregate, a PSHC Material Adverse Effect or materially adversely affect the
funding status of any such plan. Neither any PSHC Pension Plan nor any
"single-employer plan," within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any PSHC Entity, or the single-employer
plan of any entity which is considered one employer with PSHC under Section
4001 of ERISA or Section 414 of the Internal Revenue Code or Section 302 of
ERISA (whether or not waived) (an "ERISA Affiliate") has an "accumulated
funding deficiency" within the meaning of Section 412 of the Internal Revenue
Code or Section 302 of ERISA. No PSHC Entity has provided, or is required to
provide, security
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to a PSHC Pension Plan or to any single-employer plan of an ERISA Affiliate
pursuant to Section 401(a)(29) of the Internal Revenue Code.
(d) Within the six-year period preceding the
Effective Time, no Liability under Subtitle C or D of Title IV of ERISA has
been or is expected to be incurred by any PSHC Entity with respect to any
ongoing, frozen, or terminated single-employer plan or the single-employer plan
of any ERISA Affiliate. No PSHC Entity has incurred any withdrawal Liability
with respect to a multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA Affiliate. No notice
of a "reportable event," within the meaning of Section 4043 of ERISA for which
the 30-day reporting requirement has not been waived, has been required to be
filed for any PSHC Pension Plan or by any ERISA Affiliate within the 12-month
period ending on the date hereof.
(e) Except as disclosed in Section 5.15 of the PSHC
Disclosure Memorandum, no PSHC Entity has any Liability for retiree health and
life benefits under any of the PSHC Benefit Plans and there are no restrictions
on the rights of such PSHC Entity to amend or terminate any such retiree health
or benefit Plan without incurring any Liability thereunder.
(f) Except as disclosed in Section 5.15 of the PSHC
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation, golden parachute, or
otherwise) becoming due to any director or any employee of any PSHC Entity from
any PSHC Entity under any PSHC Benefit Plan or otherwise, (ii) increase any
benefits otherwise payable under any PSHC Benefit Plan, or (iii) result in any
acceleration of the time of payment or vesting of any such benefit.
(g) The actuarial present values of all accrued
deferred compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees
and former employees of any PSHC Entity and their respective beneficiaries,
other than entitlements accrued pursuant to funded retirement plans subject to
the provisions of Section 412 of the Internal Revenue Code or Section 302 of
ERISA, have been fully reflected on the PSHC Financial Statements to the extent
required by and in accordance with GAAP.
(h) PSHC (including its subsidiaries and successors)
may satisfy its current and future liabilities under the Port St. Lucie
National Bank Deferred Compensation Plan (the "Deferred Plan") by making, as
soon as administratively feasible after the date on which it terminates the
Deferred Plan, single lump sum payments (which in the aggregate are equal to or
less than the fair market value of the life insurance policy or policies
purchased to fund the benefits under the Deferred Plan) to each participant or
his beneficiary, which payments are equal to each such participant's respective
accrued benefit under the Deferred Plan as of the date on which the Deferred
Plan is terminated. In the case of a life insurance policy held in the trust,
"fair market value" shall mean the net cash surrender value of the policy,
after deducting any cancellation, liquidation or surrender charges or fees.
There are no restrictions on PSHC's (including its subsidiaries and successors)
ability to obtain such cash surrender value as of or immediately following the
Closing Date (other than applicable surrender charges). Neither Seacoast nor
any PSHC Entity shall be obligated to contribute cash or other property to fund
such benefits under the Deferred Plan. There are no restrictions on the PSHC's
(including its subsidiaries and successors) right to terminate the Deferred
Plan as to benefits which have not accrued as of the Closing Date.
5.16 MATERIAL CONTRACTS. Except as disclosed in Section 5.16
of the PSHC Disclosure Memorandum or otherwise reflected in the PSHC Financial
Statements, none of the PSHC Entities, nor any of their respective Assets,
businesses, or operations, is a party to, or is bound or affected by, or
receives benefits under, (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate payments to any
Person in any calendar year in excess of $50,000, (ii) any Contract relating to
the borrowing of money by any PSHC Entity or the guarantee by any PSHC Entity
of any such obligation (other than Contracts evidencing deposit liabilities,
purchases of federal funds, fully-secured repurchase agreements, and Federal
Home Loan Bank advances of depository institution Subsidiaries, trade payables
and Contracts relating to borrowings or
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guarantees made in the ordinary course of business), (iii) any Contract which
prohibits or restricts any PSHC Entity from engaging in any business activities
in any geographic area, line of business or otherwise in competition with any
other Person, (iv) any Contract between or among PSHC Entities, (v) any
Contract involving Intellectual Property (other than Contracts entered into in
the ordinary course with customers and commercial "shrink-wrap" software
licenses), (vi) any Contract relating to the provision of data processing,
network communication, or other technical services to or by any PSHC Entity,
(vii) any Contract relating to the purchase or sale of any goods or services
(other than Contracts entered into in the ordinary course of business and
involving payments under any individual Contract not in excess of $100,000),
(viii) any exchange-traded or over-the-counter swap, forward, future, option,
cap, floor, or collar financial Contract, or any other interest rate or foreign
currency protection Contract not included on its balance sheet which is a
financial derivative Contract, and (ix) any other Contract or amendment thereto
that would be required to be filed as an exhibit to a Form 10-K filed by PSHC
with the SEC as of the date of this Agreement (together with all Contracts
referred to in Sections 5.10 and 5.15(a), the "PSHC Contracts"). With respect
to each PSHC Contract and except as disclosed in Section 5.16 of the PSHC
Disclosure Memorandum: (i) the Contract is in full force and effect; (ii) no
PSHC Entity is in Default thereunder or would be in Default thereunder as a
result of this Agreement or the transaction contemplated herein; (iii) no PSHC
Entity has repudiated or waived any material provision of any such Contract;
and (iv) no other party to any such Contract is, to the Knowledge of PSHC, in
Default in any respect or has repudiated or waived any material provision
thereunder. All of the indebtedness of any PSHC Entity for money borrowed is
prepayable at any time by such PSHC Entity without penalty or premium. None of
PSHC nor any of the PSHC Entities has any obligation or liability to any
wholesale mortgage business ("Wholesale Mortgage Business") or to any Affiliate
of such Persons to purchase, fund or extend credit with respect to any loans,
extensions of credit, mortgages, or any participation or other interest therein
originated, brokered or referred by or through such Persons, and the only
outstanding balances under any such arrangements whereby PSNB is obligated to
provide funding aggregate not more than $212,000, all of which will be repaid
in full by not later than April 30, 1997. Except as described in Section 5.16
of the PSHC Disclosure Memorandum, all Contracts to which PSHC and/or its
Subsidiaries are parties may be terminated by such PSHC Entity and its
successors and assigns without penalty, charge, liability or further
obligation.
5.17 LEGAL PROCEEDINGS. There is no Litigation instituted
or pending, or, to the Knowledge of PSHC, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against any PSHC Entity or
any employee benefit plan of any PSHC Entity, or against any director or
employee of any PSHC Entity, in their capacity as such, or against any Asset,
interest, or right of any of them, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding against
any PSHC Entity. Section 5.17 of the PSHC Disclosure Memorandum contains a
summary of all Litigation as of the date of this Agreement to which any PSHC
Entity is a party and which names a PSHC Entity as a defendant or
cross-defendant or for which any PSHC Entity has any potential Liability.
5.18 REPORTS. Except as set forth in Section 5.18
of the PSHC Disclosure Memorandum, since January 1, 1993, or the date of
organization if later, each PSHC Entity has timely filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with Regulatory Authorities (except, in
the case of state securities authorities, failures to file which are not
reasonably likely to have, individually or in the aggregate, a PSHC Material
Adverse Effect). As of their respective dates, each of such reports and
documents, including the financial statements, exhibits, and schedules thereto,
complied in all material respects with all applicable Laws. As of its
respective date, each such report and document did not, in all material
respects, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading.
5.19 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument, or other writing furnished or to be furnished by any PSHC Entity or
any Affiliate thereof to Seacoast pursuant to this Agreement or any other
document, agreement, or instrument referred to herein contains or will contain
any untrue statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the
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circumstances under which they were made, not misleading. None of the
information supplied or to be supplied by any PSHC Entity or any Affiliate
thereof for inclusion in the Registration Statement to be filed by Seacoast
with the SEC will, when the Registration Statement becomes effective, be false
or misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein not misleading. None of the
information supplied or to be supplied by any PSHC Entity or any Affiliate
thereof for inclusion in the Joint Proxy Statement to be mailed to each Party's
shareholders in connection with the Shareholders' Meetings, and any other
documents to be filed by a PSHC Entity or any Affiliate thereof with the SEC or
any other Regulatory Authority in connection with the transactions contemplated
hereby, will, at the respective time such documents are filed, and with respect
to the Joint Proxy Statement, when first mailed to the shareholders of PSHC and
Seacoast, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or, in the case
of the Joint Proxy Statement or any amendment thereof or supplement thereto, at
the time of the Shareholders' Meetings, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Shareholders' Meetings. All documents that any PSHC Entity or any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
5.20 ACCOUNTING, TAX AND REGULATORY MATTERS. No PSHC Entity
or any Affiliate thereof has taken or agreed to take any action or has any
Knowledge of any fact or circumstance that is reasonably likely to (i) prevent
the Merger from qualifying for pooling-of-interests accounting treatment or as
a reorganization within the meaning of Section 368(a) of the Internal Revenue
Code, or (ii) materially impede or delay receipt of any Consents of Regulatory
Authorities referred to in Section 9.1(b) or result in the imposition of a
condition or restriction of the type referred to in the last sentence of such
Section.
5.21 STATE TAKEOVER LAWS. Each PSHC Entity has taken all
necessary action to exempt the transactions contemplated by this Agreement
from, or if necessary to challenge the validity or applicability of, any
applicable "moratorium," "fair price," "business combination," "control share,"
or other anti-takeover Laws (collectively, "Takeover Laws").
5.22 CHARTER PROVISIONS. Each PSHC Entity has taken all
action so that the entering into of this Agreement and the consummation of the
Merger and the other transactions contemplated by this Agreement do not and
will not result in the grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any PSHC Entity or
restrict or impair the ability of Seacoast or any of its Subsidiaries to vote,
or otherwise to exercise the rights of a shareholder with respect to, shares of
any PSHC Entity that may be directly or indirectly acquired or controlled by
them. This Agreement and the transactions contemplated herein will not trigger
any supermajority voting provisions under the Articles of Incorporation,
Bylaws, or other governing instruments of any PSHC Entity.
5.23 OPINION OF FINANCIAL ADVISOR. PSHC has received the
opinion of Austin Associates, Inc., dated the date of this Agreement, to the
effect that the consideration to be received in the Merger by the holders of
PSHC Common Stock is fair, from a financial point of view, to such holders, a
signed copy of which has been delivered to Seacoast.
5.24 BOARD RECOMMENDATION. The Board of Directors of PSHC,
at a meeting duly called and held, has by unanimous vote of the directors
present (who constituted all of the directors then in office) (i) determined
that this Agreement and the transactions contemplated hereby, including the
Merger, taken together, are fair to and in the best interests of the
shareholders and (ii) resolved to recommend that the holders of the shares of
PSHC Common Stock approve this Agreement.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SEACOAST
Seacoast hereby represents and warrants to PSHC as follows:
6.1 ORGANIZATION, STANDING, AND POWER.6.1 Organ Seacoast
is a corporation duly organized, validly existing, and in good standing under
the Laws of the State of Florida, and has the corporate power and authority to
carry on its business as now conducted and to own, lease and operate its
material Assets. Seacoast is duly qualified or licensed to transact business as
a foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or
conduct of its business requires it to be so qualified or licensed, except for
such jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Seacoast
Material Adverse Effect.
6.2 AUTHORITY OF SEACOAST; NO BREACH BY AGREEMENT.6.2
(a) Seacoast has the corporate power and authority
necessary to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Seacoast, subject to the approval of the issuance of the shares of Seacoast
Common Stock pursuant to the Merger by sixty-six and two-thirds percent
(66-2/3%) of all and each class of the votes cast at the Seacoast Shareholders'
Meeting (assuming for such purpose that the votes cast in respect of such
proposal represent sixty-six and two-thirds percent (66-2/3%) of all and each
class of the outstanding Seacoast Common Stock eligible to vote at the Seacoast
Shareholders' Meeting), which is the only shareholder vote required for
approval of this Agreement and consummation of the merger by Seacoast. Subject
to such requisite shareholder approval, this Agreement represents a legal,
valid, and binding obligation of Seacoast, enforceable against Seacoast in
accordance with its terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by Seacoast, nor the consummation by Seacoast of the transactions
contemplated hereby, nor compliance by Seacoast with any of the provisions
hereof, will (i) conflict with or result in a breach of any provision of
Seacoast's Articles of Incorporation or Bylaws, or (ii) constitute or result in
a Default under, or require any Consent pursuant to, or result in the creation
of any Lien on any Asset of any Seacoast Entity under, any Contract or Permit
of any Seacoast Entity, where such Default or Lien, or any failure to obtain
such Consent, is reasonably likely to have, individually or in the aggregate, a
Seacoast Material Adverse Effect, or, (iii) subject to receipt of the requisite
Consents referred to in Section 9.1(b), constitute or result in a Default
under, or require any Consent pursuant to, any Law or Order applicable to any
Seacoast Entity or any of their respective material Assets (including any
Seacoast Entity or any PSHC Entity becoming subject to or liable for the
payment of any Tax or any of the Assets owned by any Seacoast Entity or any
PSHC Entity being reassessed or revalued by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and securities
Laws, and rules of the NASD, and other than Consents required from Regulatory
Authorities, and other than notices to or filings with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation with respect to any
employee benefit plans, or under the HSR Act, and other than Consents, filings,
or notifications which, if not obtained or made, are not reasonably likely to
have, individually or in the aggregate, a Seacoast Material Adverse Effect, no
notice to, filing with, or Consent of, any public body or authority is
necessary for the consummation by Seacoast of the Merger and the other
transactions contemplated in this Agreement.
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6.3 CAPITAL STOCK.
(a) The authorized capital stock of Seacoast
consists of (i) 10,000,000 shares of Seacoast Class A Common Stock, of which
3,903,392 shares are issued and 3,872,500 outstanding as of the date of this
Agreement, (ii) 810,000 shares of $.10 par value Class B Common Stock, of which
384,638 shares are issued and outstanding as of the date of this Agreement, and
(iii) 1,000,000 shares of Seacoast Preferred Stock, none of which are issued
and outstanding. All of the issued and outstanding shares of Seacoast Capital
Stock are, and all of the shares of Seacoast Common Stock to be issued in
exchange for shares of PSHC Common Stock upon consummation of the Merger, when
issued in accordance with the terms of this Agreement, will be, duly and
validly issued and outstanding and fully paid and nonassessable. None of the
outstanding shares of Seacoast Capital Stock has been, and none of the shares
of Seacoast Common Stock to be issued in exchange for shares of PSHC Common
Stock upon consummation of the Merger will be, issued in violation of any
preemptive rights of the current or past shareholders of Seacoast.
(b) Except as set forth in Section 6.3(a), or as
disclosed in Section 6.3 of the Seacoast Disclosure Memorandum, there are no
shares of capital stock or other equity securities of Seacoast outstanding and
no outstanding Equity Rights relating to the capital stock of Seacoast.
6.4 SEACOAST SUBSIDIARIES. Seacoast has disclosed in
Section 6.4 of the Seacoast Disclosure Memorandum all of the
Seacoast Subsidiaries as of the date of this Agreement that are corporations
(identifying its jurisdiction of incorporation, each jurisdiction in which the
character of its Assets or the nature or conduct of its business requires it to
be qualified and/or licensed to transact business, and the number of shares
owned and percentage ownership interest represented by such share ownership)
and all of the Seacoast Subsidiaries that are general or limited partnerships
or other non-corporate entities (identifying the Law under which such entity is
organized, each jurisdiction in which the character of its Assets or the nature
or conduct of its business requires it to be qualified and/or licensed to
transact business, and the amount and nature of the ownership interest
therein). Except as disclosed in Section 6.4 of the Seacoast Disclosure
Memorandum, Seacoast or one of its wholly-owned Subsidiaries owns all of the
issued and outstanding shares of capital stock (or other equity interests) of
each Seacoast Subsidiary. No capital stock (or other equity interest) of any
Seacoast Subsidiary are or may become required to be issued (other than to
another Seacoast Entity) by reason of any Equity Rights, and there are no
Contracts by which any Seacoast Subsidiary is bound to issue (other than to
another Seacoast Entity) additional shares of its capital stock (or other
equity interests) or Equity Rights or by which any Seacoast Entity is or may be
bound to transfer any shares of the capital stock (or other equity interests)
of any Seacoast Subsidiary (other than to another Seacoast Entity). There are
no Contracts relating to the rights of any Seacoast Entity to vote or to
dispose of any shares of the capital stock (or other equity interests) of any
Seacoast Subsidiary. All of the shares of capital stock (or other equity
interests) of each Seacoast Subsidiary held by a Seacoast Entity are fully paid
and (except pursuant to 12 USC Section 55 in the case of national banks and
comparable, applicable state Law, if any, in the case of state depository
institutions) nonassessable and are owned by the Seacoast Entity free and clear
of any Lien. Each Seacoast Subsidiary is either a bank, a savings association,
or a corporation, and is duly organized, validly existing, and (as to
corporations) in good standing under the Laws of the jurisdiction in which it
is incorporated or organized, and has the corporate power and authority
necessary for it to own, lease and operate its Assets and to carry on its
business as now conducted. Each Seacoast Subsidiary is duly qualified or
licensed to transact business as a foreign corporation in good standing in the
States of the United States and foreign jurisdictions where the character of
its Assets or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the failure to be
so qualified or licensed is not reasonably likely to have, individually or in
the aggregate, a Seacoast Material Adverse Effect. Each Seacoast Subsidiary
that is a depository institution is an "insured institution" as defined in the
Federal Deposit Insurance Act and applicable regulations thereunder, and the
deposits in which are insured by the Bank Insurance Fund or the Savings
Association Insurance Fund.
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6.5 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Seacoast has timely filed and made available to
PSHC all SEC Documents required to be filed by Seacoast since December 31, 1992
(the "Seacoast SEC Reports"). The Seacoast SEC Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Laws and other applicable Laws and (ii) did not, at the time they
were filed (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such
Seacoast SEC Reports or necessary in order to make the statements in such
Seacoast SEC Reports, in light of the circumstances under which they were made,
not misleading. Except for Seacoast Subsidiaries that are registered as a
broker, dealer, or investment advisor, no Seacoast Subsidiary is required to
file any SEC Documents.
(b) Each of the Seacoast Financial Statements
(including, in each case, any related notes) contained in the Seacoast SEC
Reports, including any Seacoast SEC Reports filed after the date of this
Agreement until the Effective Time, complied as to form in all material
respects with the applicable published rules and regulations of the SEC with
respect thereto, was prepared in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements or, in the case of unaudited interim statements,
as permitted by Form 10-Q of the SEC), and fairly presented in all material
respects the consolidated financial position of Seacoast and its Subsidiaries
as at the respective dates and the consolidated results of operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount or effect.
6.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Seacoast
Entity has any Liabilities that are reasonably likely to have, individually or
in the aggregate, a Seacoast Material Adverse Effect, except Liabilities which
are accrued or reserved against in the consolidated balance sheets of Seacoast
as of December 31, 1995 and September 30, 1996, included in the Seacoast
Financial Statements delivered prior to the date of this Agreement or reflected
in the notes thereto. No Seacoast Entity has incurred or paid any Liability
since September 30, 1996, except for such Liabilities incurred or paid (i) in
the ordinary course of business consistent with past business practice and
which are not reasonably likely to have, individually or in the aggregate, a
Seacoast Material Adverse Effect or (ii) in connection with the transactions
contemplated by this Agreement.
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since
December 31, 1995, except as disclosed in the Seacoast Financial Statements
delivered prior to the date of this Agreement or as disclosed in Section 6.7 of
the Seacoast Disclosure Memorandum, (i) there have been no events, changes or
occurrences which have had, or are reasonably likely to have, individually or
in the aggregate, a Seacoast Material Adverse Effect, and (ii) the Seacoast
Entities have not taken any action, or failed to take any action, prior to the
date of this Agreement, which action or failure, if taken after the date of
this Agreement, would represent or result in a material breach or violation of
any of the covenants and agreements of Seacoast provided in Article 7.
6.8 CERTAIN ENVIRONMENTAL AND EMPLOYEE BENEFIT MATTERS.
(a) To the Knowledge of Seacoast, each Seacoast
Entity, its Participation Facilities and its Operating Properties, are, and
have been, in compliance with all environmental law, except for violations
which are not reasonably likely to have, individually or in the aggregate, a
Seacoast Material Adverse Effect.
(b) Seacoast has delivered or made available to PSHC
prior to the execution hereof, copies or summary plan descriptions of all
pension, retirement, profit/life insurance, deferred compensation, common stock
option, employee stock ownership, severance pay, vacation, bonus, or other
incentive plan, all other written employee programs, arrangements or
agreements, all medical, vision, dental and other health plans, all life
insurance plans, and all other employee benefit plans or fringe benefit plans,
including "employee benefit plans" as that term is defined in Section 3(3) of
ERISA, currently adopted and maintained by, sponsored in whole or in part by,
or contributed to by any Seacoast Entity or ERISA Affiliate thereof for the
benefit of employees, retirees,
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dependents, spouses, directors, independent contractors or other beneficiaries
and under which such employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries are eligible to participate
(collectively, the "Seacoast Benefit Plans"). All Seacoast Benefit Plans are in
compliance with the applicable terms of ERISA, the Internal Revenue Code or any
other applicable Laws, except for such breaches or violations the which are not
reasonably likely to have individually or in the aggregate, a Seacoast Material
Adverse Effect.
6.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. In the opinion
of management of Seacoast, the Allowance shown on the consolidated balance
sheets of Seacoast included in the most recent Seacoast Financial Statements
dated prior to the date of this Agreement was, and the Allowance shown on the
consolidated balance sheets of Seacoast included in the Seacoast Financial
Statements as of dates subsequent to the execution of this Agreement will be,
as of the dates thereof, adequate (within the meaning of GAAP and applicable
regulatory requirements or guidelines) to provide for all known or reasonably
anticipated losses relating to or inherent in the loan, lease and securities
portfolios (including accrued interest receivables) of the Seacoast Entities
and other extensions of credit (including letters of credit and commitments to
make loans or extend credit) by the Seacoast Entities as of the dates thereof.
6.10 ASSETS.
(a) Except as disclosed in Section 6.10 of the
Seacoast Disclosure Memorandum or as disclosed or reserved against in the
Seacoast Financial Statements delivered prior to the date of this Agreement,
the Seacoast Entities have good and marketable title, free and clear of all
Liens, to all of their respective Assets, except for any such Liens or other
defects of title which are not reasonably likely to have a Seacoast Material
Adverse Effect. All tangible properties used in the businesses of the Seacoast
Entities are in good condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with Seacoast's past
practices.
(b) All Assets which are material to Seacoast's
business on a consolidated basis, held under leases or subleases by any of the
Seacoast Entities, are held under valid Contracts enforceable in accordance
with their respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought), and each such Contract is in full force and effect.
(c) The Seacoast Entities currently maintain
insurance similar in amounts, scope and coverage to that maintained by other
peer banking organizations. None of the Seacoast Entities has received notice
from any insurance carrier that (i) such insurance will be canceled or that
coverage thereunder will be reduced or eliminated, or (ii) premium costs with
respect to such policies of insurance will be substantially increased. There
are presently no claims for amounts exceeding in any individual cases $5,000 or
in the aggregate $100,000 pending under such policies of insurance and no
notices have been given by any Seacoast Entity under such policies.
(d) The Assets of the Seacoast Entities include all
assets required to operate the business of the Seacoast Entities as presently
conducted.
6.11 INTELLECTUAL PROPERTY. Each Seacoast Entity owns or
has a license to use all of the Intellectual Property used by such Seacoast
Entity in the course of its business. Each Seacoast Entity is the owner of or
has a license to any Intellectual Property sold or licensed to a third party by
such Seacoast Entity in connection with such Seacoast Entity's business
operations, and such Seacoast Entity has the right to convey by sale or license
any Intellectual Property so conveyed. No Seacoast Entity is in Default under
any of its Intellectual Property licenses. No proceedings have been instituted,
or are pending or to the Knowledge of Seacoast threatened, which challenge the
rights of any Seacoast Entity with respect to Intellectual Property used, sold
or licensed by such Seacoast Entity in the course of its business, nor has any
person claimed or alleged any rights to
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such Intellectual Property. The conduct of the business of the Seacoast
Entities does not infringe any Intellectual Property of any other person.
Except as disclosed in Section 6.11 of the Seacoast Disclosure Memorandum, no
Seacoast Entity is obligated to pay any recurring royalties to any Person with
respect to any such Intellectual Property. Except as disclosed in Section 6.11
of the Seacoast Disclosure Memorandum, every officer, director, or employee of
any Seacoast Entity is a party to a Contract which requires such officer,
director or employee to assign any interest in any Intellectual Property to a
Seacoast Entity and to keep confidential any trade secrets, proprietary data,
customer information, or other business information of a Seacoast Entity, and
no such officer, director or employee is party to any Contract with any Person
other than a Seacoast Entity which requires such officer, director or employee
to assign any interest in any Intellectual Property to any Person other than a
Seacoast Entity or to keep confidential any trade secrets, proprietary data,
customer information, or other business information of any Person other than a
Seacoast Entity. Except as disclosed in Section 6.11 of the Seacoast Disclosure
Memorandum, no officer, director or employee of any Seacoast Entity is party to
any Contract which restricts or prohibits such officer, director or employee
from engaging in activities competitive with any Person, including any Seacoast
Entity.
6.12 [RESERVED].
6.13 COMPLIANCE WITH LAWS. Seacoast is duly registered
as a bank holding company under the BHC Act. Each Seacoast Entity has in effect
all Permits necessary for it to own, lease or operate its material Assets and
to carry on its business as now conducted, except for those Permits the absence
of which are not reasonably likely to have, individually or in the aggregate, a
Seacoast Material Adverse Effect, and there has occurred no Default under any
such Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Seacoast Material Adverse Effect. Except as
disclosed in Section 6.13 of the Seacoast Disclosure Memorandum, none of the
Seacoast Entities:
(a) is in Default under its Articles of Incorporation or
Bylaws (or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits
applicable to its business or employees conducting its business,
except for Defaults which are not reasonably likely to have,
individually or in the aggregate, a Seacoast Material Adverse Effect;
or
(c) since January 1, 1993, has received any notification or
communication from any agency or department of federal, state, or
local government or any Regulatory Authority or the staff thereof (i)
asserting that any Seacoast Entity is not in compliance with any of
the Laws or Orders which such governmental authority or Regulatory
Authority enforces, (ii) threatening to revoke any Permits or (iii)
requiring any Seacoast Entity to enter into or consent to the issuance
of a cease and desist order, formal agreement, directive, commitment
or memorandum of understanding, or to adopt any Board resolution or
similar undertaking, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit
or reserve policies, its management, or the payment of dividends.
6.14 LEGAL PROCEEDINGS. There is no Litigation instituted or
pending, or, to the Knowledge of Seacoast, threatened (or unasserted but
considered probable of assertion and which if asserted would have at least a
reasonable probability of an unfavorable outcome) against any Seacoast Entity
or employee benefit plan of any Seacoast Entity, or against any director or
employee of any Seacoast Entity, in their capacity as such, or against any
Asset, interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Seacoast Material Adverse Effect, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any Seacoast Entity.
6.15 REPORTS.Since January 1, 1993, or the date of
organization if later, each Seacoast Entity has filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with Regulatory Authorities (except, in
the case of state securities authorities, failures to file which are not
reasonably likely to have, individually or in the aggregate, a Seacoast
Material Adverse Effect).
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As of their respective dates, each of such reports and documents, including the
financial statements, exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document did not, in all material respects, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
6.16 STATEMENTS TRUE AND CORRECT. No statement, certificate,
instrument or other writing furnished or to be furnished by any Seacoast Entity
or any Affiliate thereof to PSHC pursuant to this Agreement or any other
document, agreement or instrument referred to herein contains or will contain
any untrue statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. None of the information supplied or to be
supplied by any Seacoast Entity or any Affiliate thereof for inclusion in the
Registration Statement to be filed by Seacoast with the SEC, will, when the
Registration Statement becomes effective, be false or misleading with respect
to any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any Seacoast Entity or any Affiliate thereof for inclusion in the
Joint Proxy Statement to be mailed to each Party's shareholders in connection
with the Shareholders' Meetings, and any other documents to be filed by any
Seacoast Entity or any Affiliate thereof with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Joint Proxy
Statement, when first mailed to the shareholders of PSHC and Seacoast, be false
or misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Joint Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders' Meetings, be false or misleading with respect to any material
fact, or omit to state any material fact necessary to correct any statement in
any earlier communication with respect to the solicitation of any proxy for the
Shareholders' Meetings. All documents that any Seacoast Entity or any Affiliate
thereof is responsible for filing with any Regulatory Authority in connection
with the transactions contemplated hereby will comply as to form in all
material respects with the provisions of applicable Law.
6.17 ACCOUNTING, TAX AND REGULATORY MATTERS. No Seacoast
Entity or any Affiliate thereof has taken or agreed to take any action or has
any Knowledge of any fact or circumstance that is reasonably likely to (i)
prevent the Merger from qualifying for pooling-of-interests accounting
treatment or as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt of any
Consents of Regulatory Authorities referred to in Section 9.1(b) or result in
the imposition of a condition or restriction of the type referred to in the
last sentence of such Section. All Tax Returns required to be filed by or on
behalf of any of the Seacoast Entities have been timely filed or requests for
extensions have been timely filed, granted and have not expired for periods on
or before December 31, 1995 and on or before the day of the most recent fiscal
year end immediately preceding the Effective Time, except to the extent that
all such failures to file, taken together, are not reasonably likely to have a
Seacoast Material Adverse Effect and all such Tax Returns filed are complete
and accurate in all material respects. All Taxes shown on Tax Returns have been
paid. As of the date of this Agreement, there is no audit examination,
deficiency, or refund Litigation with respect to any Taxes, except as reserved
against any Seacoast Financial Statements delivered prior to the date of this
Agreement or as disclosed in Section 6.17 of the Seacoast Disclosure
Memorandum. The provision for Taxes due or to become due for any of the
Seacoast Entities for the period or periods through and including the day of
the respective Seacoast Financial Statements has been made and is reflected on
such Seacoast Financial Statements is sufficient to cover all such Taxes.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF PSHC. Except as disclosed in
Section 7.1 of the PSHC Disclosure Memorandum with respect to PSNB's proposed
Ft. Pierce branch office, the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement, unless the prior written
consent of
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Seacoast shall have been obtained, and except as otherwise expressly
contemplated herein, PSHC shall and shall cause each of its Subsidiaries to
operate its business only in the usual, regular, and ordinary course, and in a
manner designed to preserve intact its business organization and Assets and
maintain its rights and franchises, and shall take no action which would (i)
adversely affect the ability of any Party to obtain any Consents required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentences of Section 9.1(b) or
9.1(c), or (ii) adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement. Furthermore, except for the up
to $212,000 of credit, heretofore committed by PSNB and described in the fourth
sentence of Section 5.16 hereof, any loans, leases or extensions of credit
secured by real property originated, purchased or funded in whole or in part by
any PSHC Entity, where the obligor thereon and the real property related
thereto are not both located in St. Lucie, Xxxxxx and/or Indian River Counties,
Florida (collectively, the "Counties") shall conform to the FNMA or FHLMC
seller/servicer guidelines applicable to such Loans and shall be immediately
saleable to FNMA and/or FHLMC. PSHC and each PSHC Entity shall immediately
terminate and discontinue purchasing, funding or otherwise extending credit or
committing or agreeing to any of the foregoing with respect to any loans,
extensions of credit, leases and/or mortgages or any participations or other
interests therein from any Wholesale Mortgage Business and/or any Affiliate of
such Wholesale Mortgage Business, except to meet PSNB's contractual obligations
under the existing commitments described in the fourth sentence of Section 5.16
hereof, and except to purchase and hold as temporary investments, up to $2.5
million at any time of fully-approved FHA and VA Loans at any time through
April 30, 1997.
7.2 NEGATIVE COVENANTS OF PSHC. From the date of this
Agreement until the earlier of the Effective Time or the termination of this
Agreement, unless the prior written consent of Seacoast shall have been
obtained, and except as otherwise expressly contemplated herein, PSHC covenants
and agrees that it will not do or agree or commit to do, or permit any of its
Subsidiaries to do or agree or commit to do, any of the following:
(a) amend the Articles of Incorporation, Bylaws or other
governing instruments of any PSHC Entity or, except as expressly
contemplated by this Agreement, or
(b) incur any additional debt obligation or other obligation
for borrowed money (other than indebtedness of a PSHC Entity to
another PSHC Entity) in excess of an aggregate of $50,000 (for the
PSHC Entities on a consolidated basis) except in the ordinary course
of the business of PSHC Subsidiaries consistent with past practices
(which shall include, for PSHC Subsidiaries that are depository
institutions, creation of deposit liabilities, purchases of federal
funds, advances from the Federal Reserve Bank or Federal Home Loan
Bank, and entry into repurchase agreements fully secured by U.S.
government or agency securities), or impose, or suffer the imposition,
on any Asset of any PSHC Entity of any Lien or permit any such Lien to
exist (other than in connection with deposits, repurchase agreements,
bankers acceptances, "treasury tax and loan" accounts established in
the ordinary course of business, the satisfaction of legal
requirements in the exercise of trust powers, and Liens in effect as
of the date hereof that are disclosed in the PSHC Disclosure
Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit
plans), directly or indirectly, any shares, or any securities
convertible into any shares, of the capital stock of any PSHC Entity,
or declare or pay any dividend or make any other distribution in
respect of PSHC's capital stock; or
(d) except for this Agreement, or pursuant to the exercise of
stock options or warrants or warrants outstanding as of the date
hereof and pursuant to the terms thereof in existence on the date
hereof, or as disclosed in Section 7.2(d) of the PSHC Disclosure
Memorandum, issue, sell, pledge, encumber, authorize the issuance of,
enter into any Contract to issue, sell, pledge, encumber, or authorize
the issuance of, or otherwise permit to become outstanding, any
additional shares of PSHC Common Stock or any other capital stock of
any PSHC Entity, or any stock appreciation rights, or any option,
warrant, or other Equity Right; or
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(e) adjust, split, combine or reclassify any capital stock of
any PSHC Entity or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of PSHC Common
Stock, or sell, lease, mortgage or otherwise dispose of or otherwise
encumber (x) any shares of capital stock of any PSHC Subsidiary (unless
any such shares of stock are sold or otherwise transferred to another
PSHC Entity) or (y) any Asset having a book value in excess of $50,000
other than in the ordinary course of business for reasonable and
adequate consideration; or
(f) (1) except for purchases of U.S. Treasury securities or
U.S. Government agency securities, which in either case have maturities
of one year or less, purchase any securities or make any material
investment, either by purchase of stock or securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other
than a wholly owned PSHC Subsidiary, or otherwise acquire direct or
indirect control over any Person, other than in connection with (i)
foreclosures in the ordinary course of business, (ii) acquisitions of
control by a depository institution subsidiary solely in its fiduciary
capacity, or (iii) the creation of new wholly owned Subsidiaries
organized to conduct or continue activities otherwise permitted by this
Agreement; (2) make any new loans or extensions of credit or renew,
extend or renegotiate any existing loans or extensions of credit (i)
with respect to properties or businesses outside of the Counties or to
borrowers whose principal residence is outside of the Counties, (ii)
that are unsecured in excess of $100,000, or (iii) that are secured in
excess of $250,000; (3) purchase or sell (except for sales of single
family residential first mortgage loans in the ordinary course of PSHC's
business for fair market value) any whole loans, leases, mortgages or
any loan participations or agented credits or other interest therein,
(4) renew or renegotiate any loans or credits that are on any watch list
and/or are classified or special mentioned or take any similar actions
with respect to collateral held with respect to debts previously
contracted or other real estate owned, except pursuant to safe and sound
banking practices and with prior disclosure to First National; provided,
however, that PSHC may, without the prior notice to or written consent
of First National, renew or extend existing credits on substantially
similar terms and conditions as present at the time such credit was made
or last extended, renewed or modified, for a period not to exceed one
year and at rates not less than market rates for comparable credits and
transactions and without any release of any collateral except as any
PSHC Entity is presently obligated under existing written agreements
kept as part of such PSHC Entity's official records. If any PSHC Entity
makes, extends, renews, renegotiates, compromises or settles any loans
or extensions of credit or releases any collateral therefore that are
subject to the prior disclosure to First National hereunder and First
National has objected thereto the Purchase Price shall be reduced on a
dollar for dollar basis in an amount equal to all outstanding principal
of, all accrued but unpaid interest and other charges on such loan(s) as
of the Closing Date; or
(g) grant any increase in compensation or benefits to the
employees or officers of any PSHC Entity, except in accordance with past
practice disclosed in Section 7.2(g) of the PSHC Disclosure Memorandum
or as required by Law; pay any severance or termination pay or any bonus
other than pursuant to written policies or written Contracts in effect
on the date of this Agreement and disclosed in Section 7.2(g) of the
PSHC Disclosure Memorandum; and enter into or amend any severance
agreements with officers of any PSHC Entity; grant any material increase
in fees or other increases in compensation or other benefits to
directors of any PSHC Entity except in accordance with past practice
disclosed in Section 7.2(g) of the PSHC Disclosure Memorandum; or
voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits or other Equity Rights; or
(h) enter into or amend any employment Contract between any
PSHC Entity and any Person (unless such amendment is required by Law)
that the PSHC Entity does not have the unconditional right to terminate
without Liability (other than Liability for services already rendered),
at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any PSHC Entity or
terminate or withdraw from, or make any material change in or to, any
existing employee benefit plans of any PSHC Entity other than any such
change that is required by Law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax qualified status of any such
plan, or make any distributions from such employee benefit plans, except
as required by Law, the terms of such plans or consistent with past
practice; or
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(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may be
appropriate to conform to changes in Tax Laws or regulatory accounting
requirements or GAAP; or
(k) commence any Litigation other than in accordance with
past practice, settle any Litigation involving any Liability of any PSHC
Entity for material money damages or restrictions upon the operations of
any PSHC Entity; or
(l) except in the ordinary course of business and as
expressly permitted in Section 7.2(f), enter into, modify, amend or
terminate any material Contract (including any loan Contract with an
unpaid balance or any Contract calling for payments exceeding $100,000)
or waive, release, compromise or assign any material rights or claims.
7.3 COVENANTS OF SEACOAST. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
unless the prior written consent of PSHC shall have been obtained, and except
as otherwise expressly contemplated herein, Seacoast covenants and agrees that
it shall (a) continue to conduct its business and the business of its
Subsidiaries in a manner designed in its reasonable judgment, to enhance the
long-term value of the Seacoast Capital Stock and the business prospects of the
Seacoast Entities and to the extent consistent therewith use all reasonable
efforts to preserve intact the Seacoast Entities' core businesses and goodwill
with their respective employees and the communities they serve, and (b) take no
action which would (i) materially adversely affect the ability of any Party to
obtain any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentences of Section 9.1(b) or 9.1(c), or (ii) materially adversely affect the
ability of any Party to perform its covenants and agreements under this
Agreement; provided, that the foregoing shall not prevent any Seacoast Entity
from acquiring any Assets or other businesses or from discontinuing or
disposing of any of its Assets or business if such action is, in the judgment
of Seacoast, desirable in the conduct of the business of Seacoast and its
Subsidiaries. Seacoast further covenants and agrees that it will not, without
the prior written consent of PSHC, which consent shall not be unreasonably
withheld, amend the Articles of Incorporation or Bylaws of Seacoast, in each
case, in any manner adverse to the holders of PSHC Common Stock as compared to
rights of holders of Seacoast Common Stock generally as of the date of this
Agreement.
7.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give
written notice promptly to the other Party upon becoming aware of the
occurrence or impending occurrence of any event or circumstance relating to it
or any of its Subsidiaries which (i) is reasonably likely to have, individually
or in the aggregate, a PSHC Material Adverse Effect or a Seacoast Material
Adverse Effect, as applicable, or (ii) would cause or constitute a material
breach of any of its representations, warranties, or covenants contained
herein, and to use its reasonable efforts to prevent or promptly to remedy the
same.
7.5 REPORTS. Each Party and its Subsidiaries shall file all
reports required to be filed by it with Regulatory Authorities between the date
of this Agreement and the Effective Time and shall deliver to the other Party
copies of all such reports promptly after the same are filed. If financial
statements are contained in any such reports filed with the SEC, such financial
statements will fairly present in all material respects the consolidated
financial position of the entity filing such statements as of the dates
indicated and the consolidated results of operations, changes in shareholders'
equity, and cash flows for the periods then ended in accordance with GAAP
(subject in the case of interim financial statements to normal recurring
year-end adjustments that are not material). As of their respective dates, such
reports filed with the SEC will comply in all material respects with the
Securities Laws and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial statements contained in any other
reports to another Regulatory Authority shall be prepared in accordance with
Laws applicable to such reports.
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ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; SHAREHOLDER
APPROVAL. As soon as reasonably practicable after execution of this Agreement,
at a date determined by Seacoast in its sole discretion, Seacoast shall prepare
and file the Registration Statement with the SEC, and shall use its reasonable
efforts to cause the Registration Statement to become effective under the 1933
Act and take any action required to be taken under the applicable state Blue
Sky or securities Laws in connection with the issuance of the shares of
Seacoast Common Stock upon consummation of the Merger. PSHC shall cooperate in
the preparation and filing of the Registration Statement and shall furnish all
information concerning it and the holders of its capital stock as Seacoast may
reasonably request in connection with such action. PSHC shall call a
Shareholders' Meeting, to be held as soon as reasonably practicable after the
Registration Statement is declared effective by the SEC, for the purpose of
voting upon approval of this Agreement and such other related matters as it
deems appropriate. Seacoast shall call a Shareholders' Meeting, to be held as
soon as reasonably practicable after the Registration Statement is declared
effective by the SEC, for the purpose of voting upon the issuance of shares of
Seacoast Common Stock pursuant to the Merger and such other related matters as
it deems appropriate. In connection with the Shareholders' Meetings, (i) PSHC
and Seacoast shall prepare and file with the SEC a Joint Proxy Statement and
mail such Joint Proxy Statement to their respective shareholders, (ii) the
Parties shall furnish to each other all information concerning them that they
may reasonably request in connection with such Joint Proxy Statement, (iii) the
Board of Directors of PSHC and Seacoast shall recommend to their respective
shareholders the approval of the matters submitted for approval, and (iv) the
Board of Directors and officers of PSHC and Seacoast shall use their reasonable
efforts to obtain such shareholders' approval. Seacoast and PSHC shall make all
necessary filings with respect to the Merger under the Securities Laws.
8.2 NASDAQ LISTING. Seacoast shall use its reasonable efforts
to list, prior to the Effective Time, on the Nasdaq National Market the shares
of Seacoast Common Stock to be issued to the holders of PSHC Common Stock
pursuant to the Merger, and Seacoast shall give all notices and make all
filings with the NASD required in connection with the transactions contemplated
herein.
8.3 APPLICATIONS. Seacoast shall promptly prepare and file,
and PSHC shall cooperate in the preparation and, where appropriate, filing of,
applications with all Regulatory Authorities having jurisdiction over the
transactions contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this Agreement. The
Parties shall deliver to each other copies of all filings, correspondence and
orders to and from all Regulatory Authorities in connection with the
transactions contemplated hereby.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to
the conditions of this Agreement, Seacoast shall execute and file the Articles
of Merger with the Secretary of State of the State of Florida in connection
with the Closing.
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the
terms and conditions of this Agreement, each Party agrees to use, and to cause
its Subsidiaries to use, its reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the transactions
contemplated by this Agreement, including using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each Party shall use,
and shall cause each of its Subsidiaries to use, its reasonable efforts to
obtain all Consents necessary or desirable for the consummation of the
transactions contemplated by this Agreement.
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8.6 INVESTIGATION AND CONFIDENTIALITY
(a) Prior to the Effective Time, each Party shall
keep the other Party advised of all material developments relevant to its
business and to consummation of the Merger and shall permit the other Party to
make or cause to be made such investigation of the business and properties of
it and its Subsidiaries and of their respective financial and legal conditions
as the other Party reasonably requests, provided that such investigation shall
be reasonably related to the transactions contemplated hereby and shall not
interfere unnecessarily with normal operations. No investigation by a Party
shall affect the representations and warranties of the other Party.
(b) In addition to the Parties' respective
obligations under the Confidentiality Agreement, which are hereby reaffirmed
and adopted, and incorporated by reference herein each Party shall, and shall
cause its advisers and agents to, maintain the confidentiality of all
confidential information furnished to it by the other Party concerning its and
its Subsidiaries' businesses, operations, and financial positions and shall not
use such information for any purpose except in furtherance of the transactions
contemplated by this Agreement. In the event that a Party is required by
applicable law or valid court process to disclose any such confidential
information then such Party shall provide the other Party with prompt written
notice of any such requirement so that the other Party may seek a protective
order or other appropriate remedy and/or waive compliance with this Section
8.6. If in the absence of a protective order or other remedy or the receipt of
a waiver by the other Party, a Party is nonetheless, in the written opinion of
counsel, legally compelled to disclose any such confidential information to any
tribunal or else stand liable for contempt or suffer other censure or penalty,
a Party may, without liability hereunder, disclose to such tribunal only that
portion of the confidential information which such counsel advises such Party
is legally required to be disclosed, provided that such disclosing Party use
its best efforts to preserve the confidentiality of such confidential
information, including without limitation, by cooperating with the other Party
to obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded such confidential information by such
tribunal. If this Agreement is terminated prior to the Effective Time, each
Party shall promptly return or certify the destruction of all documents and
copies thereof, and all work papers containing confidential information
received from the other Party.
(c) PSHC shall use its reasonable efforts to
exercise its rights under confidentiality agreements entered into with Persons,
if any, which were considering an Acquisition Proposal with respect to PSHC to
preserve the confidentiality of the information relating to the PSHC Entities
provided to such Persons and their Affiliates and Representatives.
(d) Each Party agrees to give the other Party notice
as soon as practicable after any determination by it of any fact or occurrence
relating to the other Party which it has discovered through the course of its
investigation and which represents, or is reasonably likely to represent,
either a material breach of any representation, warranty, covenant or agreement
of the other Party or which has had or is reasonably likely to have a PSHC
Material Adverse Effect or a Seacoast Material Adverse Effect, as applicable.
8.7 PRESS RELEASES Prior to the Effective Time, PSHC and
Seacoast shall consult with each other as to the form and substance of any
press release or other public disclosure materially related to this Agreement
or any other transaction contemplated hereby; provided, that nothing in this
Section 8.7 shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
8.8 CERTAIN ACTIONS. Except with respect to this Agreement
and the transactions contemplated hereby, no PSHC Entity nor any Affiliate
thereof nor any Representatives thereof retained by any PSHC Entity shall
directly or indirectly solicit any Acquisition Proposal by any Person. Except
to the extent the Board of Directors of PSHC, after having consulted with and
considered the advice of outside counsel, reasonably determines in good faith
that the failure to take such actions would constitute a breach of fiduciary
duties of the members of such Board of Directors to PSHC's shareholder under
applicable law, no PSHC Entity or any Affiliate or Representative thereof shall
furnish any non-public information that it is not legally obligated to furnish,
negotiate with respect to, or enter into any Contract with respect to, any
Acquisition Proposal, but PSHC may
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communicate information about such an Acquisition Proposal to its shareholders
if and to the extent that it is required to do so in order to comply with its
legal obligations. PSHC shall promptly advise Seacoast following the receipt of
any Acquisition Proposal and the details thereof, and advise Seacoast of any
developments with respect to such Acquisition Proposal promptly upon the
occurrence thereof. PSHC shall (i) immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any Persons conducted
heretofore with respect to any of the foregoing, and (ii) direct and use its
reasonable efforts to cause all of its Affiliates and Representatives not to
engage in any of the foregoing.
8.9 ACCOUNTING AND TAX TREATMENT. Each of the Parties
undertakes and agrees to use its reasonable efforts to cause the Merger, and to
use its reasonable efforts to take no action which would cause the Merger not,
to qualify for treatment as a pooling of interests for accounting purposes or
as a "reorganization" within the meaning of Section 368(a) of the Internal
Revenue Code for federal income tax purposes.
8.10 STATE TAKEOVER LAWS. Each PSHC Entity and each PSHC
shareholder shall take the necessary steps to exempt the transactions
contemplated by this Agreement from, or if necessary to challenge the validity
or applicability of, any applicable Takeover Law, including the FBCA.
8.11 CHARTER PROVISIONS. Except as required by applicable Law
or as otherwise provided in this Agreement, each PSHC Entity shall take all
necessary action to ensure that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated hereby do
not and will not result in the grant of any rights to any Person under the
Articles of Incorporation, Bylaws or other governing instruments of any PSHC
Entity or restrict or impair the ability of Seacoast or any of its Subsidiaries
to vote, or otherwise to exercise the rights of a shareholder with respect to,
shares of any PSHC Entity that may be directly or indirectly acquired or
controlled by them.
8.12 PSHC MEETINGS. Each PSHC Entity shall give prior notice
of each meeting or proposed action by any of their respective Boards of
Directors and/or committees, including a description of any matters to be
discussed and/or acted upon, and shall permit a representative of Seacoast to
attend each such meeting, except during discussions relating to the
transactions contemplated herein that present conflict of interest and/or
confidentiality issues.8.12 PSHC Meetings
8.13 AGREEMENT OF AFFILIATES. PSHC has disclosed in Section
8.13 of the PSHC Disclosure Memorandum all Persons whom it reasonably believes
is an "affiliate" of PSHC for purposes of Rule 145 under the 1933 Act. PSHC
shall use its reasonable efforts to cause each such Person to deliver to
Seacoast upon the execution of this Agreement a written agreement,
substantially in the form of Exhibit 2, providing that such Person will not
sell, pledge, transfer, or otherwise dispose of the shares of PSHC Common Stock
held by such Person except as contemplated by such agreement or by this
Agreement and will not sell, pledge, transfer, or otherwise dispose of the
shares of Seacoast Common Stock to be received by such Person upon consummation
of the Merger except in compliance with applicable provisions of the 1933 Act
and the rules and regulations thereunder and, until such time as financial
results covering at least 30 days of combined operations of Seacoast and PSHC
have been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies. Shares of Seacoast Common Stock
issued to such affiliates of PSHC in exchange for shares of PSHC Common Stock
shall not be transferable until such time as financial results covering at
least 30 days of combined operations of Seacoast and PSHC have been published
within the meaning of Section 201.01 of the SEC's Codification of Financial
Reporting Policies, regardless of whether each such affiliate has provided the
written agreement referred to in this Section 8.13 (and Seacoast shall be
entitled to place restrictive legends upon certificates for shares of Seacoast
Common Stock issued to affiliates of PSHC pursuant to this Agreement to enforce
the provisions of this Section 8.13; provided that Seacoast removes such
legends at the appropriate time). Seacoast shall not be required to maintain
the effectiveness of the Registration Statement under the 1933 Act for the
purposes of resale of Seacoast Common Stock by such affiliates.
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8.14 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, Seacoast shall provide
generally to officers and employees of the PSHC Entities employee benefits
under employee benefit and welfare plans (other than stock option or other
plans involving the potential issuance of Seacoast Common Stock), on terms and
conditions which when taken as a whole are substantially similar to those
currently provided by the Seacoast Entities to their similarly situated
officers and employees; provided, that, for a period of 12 months after the
Effective Time, Seacoast shall provide generally to officers and employees of
PSHC Entities severance benefits in accordance with the policies of either (i)
PSHC as disclosed in Section 8.14 of the PSHC Disclosure Memorandum, or (ii)
Seacoast, whichever of (i) or (ii) will provide the greater benefit to the
officer or employee. Seacoast shall waive any pre-existing condition exclusion
under any employee health plan for which any employees and/or officers and
dependents covered by PSHC plans as of Closing of the PSHC Entities shall
become eligible by virtue of the preceding sentence, to the extent (i) such
pre-existing condition was covered under the corresponding plan maintained by
the PSHC Entity and (ii) the individual affected by the pre-existing condition
was covered by the PSHC Entity's corresponding plan on the date which
immediately precedes the Effective Time, provided that PSHC has disclosed in
Section 8.14 of the PSHC Disclosure Memorandum and at Closing that none of its
employees, officers or other participants or their respective dependents, to
the best of PSHC and PSNB's knowledge and belief, have any long-term
disabilities or conditions, which in the reasonable judgment of Seacoast would
materially adversely affect the claims experience and/or costs of any employee
benefit plan or insurance maintained by or through any Seacoast Entity. For
purposes of participation, vesting and (except in the case of Seacoast
retirement plans) benefit accrual under Seacoast's employee benefit plans, the
service of the employees of the PSHC Entities prior to the Effective Time shall
be treated as service with a Seacoast Entity participating in such employee
benefit plans. Seacoast also shall cause the Surviving Corporation and its
Subsidiaries to honor in accordance with their terms all employment, severance,
consulting and other compensation Contracts disclosed in Section 8.14 of the
PSHC Disclosure Memorandum to Seacoast between any PSHC Entity and any current
or former director, officer, or employee thereof, and all provisions for vested
benefits or other vested amounts earned or accrued through the Effective Time
under the PSHC Benefit Plans.
(b) Upon the execution hereof, a mutually acceptable
employment agreement between J. Xxx Xxxxxxx, Xx. and Seacoast or First National
shall be executed and delivered, and which shall become effective at the
Effective Time.
(c) Subject to compliance with applicable Laws and
the absence of any Material Adverse Effects upon Seacoast or any PSHC Benefit
Plans and/or Seacoast Benefit Plans, Seacoast intends to merge the PSHC 401(k)
Plan with the Seacoast 401(k) Plan.
(d) Effective upon the Effective Time, PSHC and, as
applicable, its Subsidiaries shall terminate, their Employee Non-Qualified
Stock Investment Plan and Trust of Port St. Lucie National Bank and the
Deferred Compensation Plan offered to Directors. Such termination and the
effects thereof shall be in accordance with Section 5.15(h) hereof..
8.15 INDEMNIFICATION.
(a) With respect to all claims brought during the
period of four years after the Effective Time, Seacoast shall indemnify, defend
and hold harmless the present and former directors, officers, employees and
agents of the PSHC Entities (each, an "Indemnified Party") against all
Liabilities arising out of actions or omissions arising out of the Indemnified
Party's service or services as directors, officers, employees or agents of PSHC
or, at PSHC's request, of another corporation, partnership, joint venture,
trust or other enterprise occurring at or prior to the Effective Time
(including the transactions contemplated by this Agreement) to the fullest
extent permitted under Florida Law and by PSHC's Articles of Incorporation and
Bylaws as in effect on the date hereof, including provisions relating to
advances of expenses incurred in the defense of any Litigation and whether or
not any Seacoast Entity is insured against any such matter. Without limiting
the foregoing, in any case in which approval by the Surviving Corporation is
required to effectuate any indemnification, the Surviving
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Corporation shall direct, at the election of the Indemnified Party, that the
determination of any such approval shall be made by independent counsel
mutually agreed upon between Seacoast and the Indemnified Party.
(b) Seacoast shall, to the extent available, (and
PSHC shall cooperate prior to the Effective Time in these efforts) maintain in
effect for a period of two years after the Effective Time PSHC's existing
directors' and officers' liability insurance policy (provided that Seacoast may
substitute therefor (i) policies of at least the same coverage and amounts
containing terms and conditions which are substantially no less advantageous or
(ii) with the consent of PSHC given prior to the Effective Time, any other
policy) with respect to claims arising from facts or events which occurred
prior to the Effective Time and covering persons who are currently covered by
such insurance; provided, that Seacoast shall not be obligated to make
aggregate premium payments for such two-year period in respect of such policy
(or coverage replacing such policy) which exceed, for the portion related to
PSHC's directors and officers, 150% of the annual premium payments on PSHC's
current policy in effect as of the date of this Agreement (the "Maximum
Amount").
(c) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 8.15, upon learning of any
such Liability or Litigation, shall promptly notify Seacoast thereof. In the
event of any such Litigation (whether arising before or after the Effective
Time), (i) the Surviving Corporation shall have the right to assume the defense
thereof and the Surviving Corporation shall not be liable to such Indemnified
Parties for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Parties in connection with the
defense thereof, except that if the Surviving Corporation elects not to assume
such defense or counsel for the Indemnified Parties advises that there are
substantive issues which raise conflicts of interest between the Surviving
Corporation and the Indemnified Parties, the Indemnified Parties may retain
counsel satisfactory to them, and the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided, that the Surviving
Corporation shall be obligated pursuant to this paragraph (c) to pay for only
one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the
Indemnified Parties will cooperate in the defense of any such Litigation, and
(iii) the Surviving Corporation shall not be liable for any settlement effected
without its prior written consent; and provided further that the Surviving
Corporation shall not have any obligation hereunder to any Indemnified Party
when and if a court of competent jurisdiction shall determine, and such
determination shall have become final, that the indemnification of such
Indemnified Party in the manner contemplated hereby is prohibited by applicable
Law.
8.16 CERTAIN POLICIES OF PSHC. Seacoast and PSHC shall
consult with respect to their respective loan, litigation and real estate
valuation policies and practices (including loan classifications and levels of
reserves) and PSHC shall make such modification or changes to its policies and
practices, if any, prior to the Effective Time as may be mutually agreed upon.
Seacoast and PSHC also shall consult with respect to the character, amount and
timing of restructuring and Merger-related expense charges to be taken by each
of the Parties in connection with the transactions contemplated by this
Agreement and shall take such charges in accordance with GAAP, prior to the
Effective Time, as may be mutually agreed upon by the Parties. Neither Party's
representations, warranties, covenants or agreements contained in this
Agreement shall be deemed to be inaccurate or breached in any respect as a
consequence of any modifications or charges undertaken solely on account of
this Section 8.16.
8.17 NOMINATION AND ELECTION OF DIRECTORS. Seacoast shall as
soon as practicable following the Effective Time nominate and use its best
efforts to cause to be elected to the Seacoast and First National Board of
Directors two candidates from the current PSHC Board of Directors. In addition,
Seacoast shall cause First National to amend its Bylaws as soon as practicable
following the Effective Time to provide for one or more First National Advisory
Boards, including an First National Advisory Board for Port St. Lucie County.
Seacoast shall cause each of the current directors of PSHC (other than such
PSHC and/or PSNB directors who are elected as directors of Seacoast and/or
First National) to be nominated and elected to the First National Advisory
Board for St. Lucie County as soon as practicable after such Advisory Board is
constituted according to the preceding sentence.
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ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.6:
(A) SHAREHOLDER APPROVAL. The shareholders of PSHC shall have
approved this Agreement, and the consummation of the transactions
contemplated hereby, including the Merger, as and to the extent required
by Law, by the provisions of any governing instruments, or by the rules
of the NASD. The shareholders of Seacoast shall have approved the
issuance of shares of Seacoast Common Stock pursuant to the Merger, as
and to the extent required by Law, by the provisions of any governing
instruments, or by the rules of the NASD.
(B) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities
required for consummation of the Merger shall have been obtained or made
and shall be in full force and effect and all waiting periods required
by Law shall have expired. No Consent obtained from any Regulatory
Authority which is necessary to consummate the transactions contemplated
hereby shall be conditioned or restricted in a manner (including
requirements relating to the raising of additional capital or the
disposition of Assets) which in the reasonable judgment of the Board of
Directors of Seacoast would so materially adversely affect the economic
or business benefits of the transactions contemplated by this Agreement
that, had such condition or requirement been known, such Party would
not, in its reasonable judgment, have entered into this Agreement.
(C) CONSENTS AND APPROVALS. Each Party shall have obtained
any and all Consents required for consummation of the Merger (other than
those referred to in Section 9.1(b)) or for the preventing of any
Default under any Contract or Permit of such Party which, if not
obtained or made, is reasonably likely to have, individually or in the
aggregate, a PSHC Material Adverse Effect or a Seacoast Material Adverse
Effect, as applicable. No Consent so obtained which is necessary to
consummate the transactions contemplated hereby shall be conditioned or
restricted in a manner which in the reasonable judgment of the Board of
Directors of Seacoast would so materially adversely affect the economic
or business benefits of the transactions contemplated by this Agreement
that, had such condition or requirement been known, such Party would
not, in its reasonable judgment, have entered into this Agreement.
(D) LEGAL PROCEEDINGS. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any Law or Order (whether temporary,
preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal consummation of the transactions contemplated
by this Agreement.
(E) REGISTRATION STATEMENT. The Registration Statement shall
be effective under the 1933 Act, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued, no
action, suit, proceeding or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be continuing, and
all necessary approvals under state securities Laws or the 1933 Act or
1934 Act relating to the issuance or trading of the shares of Seacoast
Common Stock issuable pursuant to the Merger shall have been received.
(F) SHARE LISTING. The shares of Seacoast Common Stock
issuable pursuant to the Merger shall have been approved for listing
on the Nasdaq National Market.
(G) POOLING LETTERS. Each of the Parties shall have received
letters, dated as of the date of filing of the Registration Statement
with the SEC and as of the Effective Time, addressed to Seacoast, in
form and substance reasonably acceptable to Seacoast, from Xxxxxx
Xxxxxxxx LLP to the effect that the
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Merger will qualify for pooling-of-interests accounting treatment.
Each of the Parties also shall have received letters, dated as of the
date of filing of the Registration Statement with the SEC and as of
the Effective Time, addressed to Seacoast, in form and substance
reasonably acceptable to Seacoast, from KPMG Peat Marwick to the
effect that such firm is not aware of any matters relating to PSHC and
its Subsidiaries which would preclude the Merger from qualifying for
pooling-of-interests accounting treatment.
(H) TAX MATTERS. Each Party shall have received a written
opinion of counsel from Xxxxxx & Bird, in form reasonably satisfactory
to such Parties (the "Tax Opinion"), to the effect that (i) the Merger
will constitute a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code, (ii) the exchange in the Merger of PSHC
Common Stock for Seacoast Common Stock will not give rise to gain or
loss to the shareholders of PSHC with respect to such exchange (except
to the extent of any cash received), and (iii) none of PSHC or Seacoast
will recognize gain or loss as a consequence of the Merger (except for
amounts resulting from any required change in accounting methods and any
income and deferred gain recognized pursuant to Treasury regulations
issued under Section 1502 of the Internal Revenue Code). In rendering
such Tax Opinion, such counsel shall be entitled to rely upon
representations of officers of PSHC and Seacoast reasonably satisfactory
in form and substance to such counsel.
9.2 CONDITIONS TO OBLIGATIONS OF SEACOAST. The obligations of
Seacoast to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Seacoast pursuant to Section 11.6(a):
(A) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of
PSHC set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). The representations and warranties set forth in Section 5.3,
5.20, 5.21, and 5.22 shall be true and correct (except for inaccuracies
which are de minimus in amount). There shall not exist inaccuracies in
the representations and warranties of PSHC set forth in this Agreement
(including the representations and warranties set forth in Sections 5.3,
5.20, 5.21, and 5.22) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a PSHC Material
Adverse Effect; provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" or to the "Knowledge" of any
Person shall be deemed not to include such qualifications.
(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of PSHC to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby
prior to the Effective Time shall have been duly performed and complied
with.
(C) CERTIFICATES. PSHC shall have delivered to Seacoast (i) a
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to PSHC
and in Section 9.2(a) and 9.2(b) have been satisfied, and (ii) certified
copies of resolutions duly adopted by PSHC's Board of Directors and
shareholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated hereby, all in such
reasonable detail as Seacoast and its counsel shall request.
(D) OPINION OF COUNSEL. Seacoast shall have received an
opinion of Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A, counsel to
PSHC, dated as of the Closing, in form reasonably satisfactory to
Seacoast, as to the matters set forth in Exhibit 3.
(E) ACCOUNTANT'S LETTERS. Seacoast shall have received from
KPMG Peat Marwick letters dated not more than five days prior to (i) the
date of the Joint Proxy Statement and (ii) the Effective Time,
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with respect to certain financial information regarding PSHC, in form
and substance reasonably satisfactory to Seacoast, which letters shall
be based upon customary specified procedures undertaken by such firm
in accordance with Statement of Auditing Standard Nos. 71, 72 and 75.
(F) AFFILIATES' AGREEMENTS. Seacoast shall have received from
each affiliate of PSHC the affiliates letter referred to in Section
8.13, to the extent necessary to assure in the reasonable judgment of
Seacoast that the transactions contemplated hereby will qualify for
pooling-of-interests accounting treatment.
(G) SHAREHOLDERS' EQUITY. PSHC's shareholders' equity as of
the Closing shall not be less than PSHC's shareholders' equity as of
December 31, 1996, excluding for purposes of the calculation of such
shareholders' equity the effects of (i) all costs, fees and charges,
including fees and charges of PSHC's accountants, counsel and financial
advisors, whether or not accrued or paid, that are related to the
transactions contemplated by this Agreement not to exceed $200,000 in
the aggregate, (ii) all net charges resulting from the application of
FASB Statement No. 115 with respect to unrealized securities gains and
losses, and (iii) any reductions in PSHC's shareholders' equity
resulting from any actions or changes in policies of PSHC taken at the
request of Seacoast, including those described in Section 8.16 and (iv)
the effect on or after the Effective Time, as Seacoast may determine, of
the PSHC and/or PSNB data processing agreements as shown in Section
9.2(g) of the PSHC Disclosure Memorandum. .
(H) DIRECTOR'S AGREEMENTS. Seacoast shall have received
from each director of PSHC the Director's Agreement set forth hereto at
Exhibit 4.
(I) CLAIMS LETTER. Seacoast shall have received from
each director and officer of PSHC the Claims Letter set forth hereto at
Exhibit 5.
9.3 CONDITIONS TO OBLIGATIONS OF PSHC.9.3 Conditions to
Obligations of PSHC The obligations of PSHC to perform this Agreement and
consummate the Merger and the other transactions contemplated hereby are
subject to the satisfaction of the following conditions, unless waived by PSHC
pursuant to Section 11.6(b):
(A) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of
Seacoast set forth in this Agreement shall be assessed as of the date of
this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as
of the Effective Time (provided that representations and warranties
which are confined to a specified date shall speak only as of such
date). There shall not exist inaccuracies in the representations and
warranties of Seacoast set forth in this Agreement such that the
aggregate effect of such inaccuracies has, or is reasonably likely to
have, a Seacoast Material Adverse Effect; provided that, for purposes of
this sentence only, those representations and warranties which are
qualified by references to "material" or "Material Adverse Effect" or to
the "Knowledge" of any Person shall be deemed not to include such
qualifications.
(B) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of
the agreements and covenants of Seacoast to be performed and complied
with pursuant to this Agreement and the other agreements contemplated
hereby prior to the Effective Time shall have been duly performed and
complied with in all material respects.
(C) CERTIFICATES. Seacoast shall have delivered to PSHC (i) a
certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the
effect that the conditions set forth in Section 9.1 as relates to
Seacoast and in Section 9.3(a) and 9.3(b) have been satisfied, and (ii)
certified copies of resolutions duly adopted by Seacoast's Board of
Directors and shareholders evidencing the taking of all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby,
all in such reasonable detail as PSHC and its counsel shall request.
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(D) OPINION OF COUNSEL. PSHC shall have received an opinion
of Xxxxxx & Bird, counsel to Seacoast, dated as of the Effective Time,
in form reasonably acceptable to PSHC, as to the matters set forth in
Exhibit 6.
(E) FAIRNESS OPINION. PSHC shall have received from Austin
Associates, Inc. a letter, dated not more than five business days prior
to the date of the Proxy Statement, to the effect that, in the opinion
of such firm, the consideration to be received by PSHC shareholders in
connection with the Merger is fair, from a financial point of view, to
such shareholders.
ARTICLE 10
TERMINATION10 - TERMINATION
10.1 TERMINATION.10.1 Termination Notwithstanding any other
provision of this Agreement, and notwithstanding the approval of this Agreement
by the shareholders of PSHC and Seacoast or both, this Agreement may be
terminated and the Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of Seacoast and PSHC; or
(b) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a breach
by the other Party of any representation or warranty contained in this
Agreement which cannot be or has not been cured within 30 days after the
giving of written notice to the breaching Party of such breach and which
breach is reasonably likely, in the opinion of the non-breaching Party,
to have, individually or in the aggregate, a PSHC Material Adverse
Effect or a Seacoast Material Adverse Effect, as applicable, on the
breaching Party; or
(c) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event of a
material breach by the other Party of any covenant or agreement
contained in this Agreement which cannot be or has not been cured within
30 days after the giving of written notice to the breaching Party of
such breach; or
(d) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event (i) any
Consent of any Regulatory Authority required for consummation of the
Merger and the other transactions contemplated hereby shall have been
denied by final nonappealable action of such authority or if any action
taken by such authority is not appealed within the time limit for
appeal, or (ii) the shareholders of PSHC or Seacoast fail to vote their
approval of the matters relating to this Agreement and the transactions
contemplated hereby at the Shareholders' Meetings where such matters
were presented to such shareholders for approval and voted upon; or
(e) By either Party in the event that the Merger shall not
have been consummated by August 31, 1997, if the failure to consummate
the transactions contemplated hereby on or before such date is not
caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 10.1(e); or
(f) By either Party (provided that the terminating Party is
not then in material breach of any representation, warranty, covenant,
or other agreement contained in this Agreement) in the event that any of
the conditions precedent to the obligations of such Party to consummate
the Merger cannot be satisfied or fulfilled by the date specified in
Section 10.1(e); or
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(g) By Seacoast, in the event that the Board of
Directors of PSHC shall have failed to reaffirm its approval of the
Merger and the transactions contemplated by this Agreement (to the
exclusion of any other Acquisition Proposal), or shall have resolved not
to reaffirm the Merger, or shall have affirmed, recommended or
authorized entering into any other Acquisition Proposal or other
transaction involving a merger, share exchange, consolidation or
transfer of substantially all of the Assets of PSHC.
(h) By PSHC in the event that the Purchase Price Per
Share shall be less than $24.62.
10.2 EFFECT OF TERMINATION.10.2 Effect of Termination In the
event of the termination and abandonment of this Agreement pursuant to Section
10.1, this Agreement shall become void and have no effect, except that (i) the
provisions of this Section 10.2 and Article 11 and Sections 8.6(b) and 8.7
shall survive any such termination and abandonment, and (ii) a termination
pursuant to Sections 10.1(b), 10.1(c) or 10.1(f) shall not relieve the
breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement giving rise to such
termination.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS.10.3
Non-Survival of Representations and Covenants The respective representations,
warranties, obligations, covenants, and agreements of the Parties shall not
survive the Effective Time except this Section 10.3 and Articles 1, 2, 3, 4 and
11 and Sections 8.7, 8.13, 8.14, 8.15 and 8.17.
ARTICLE 11
MISCELLANEOUS11 - MISCELLANEOUS
11.1 DEFINITIONS.11.1 Definitions
(a) Except as otherwise provided herein, the
capitalized terms set forth below shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"ACQUISITION PROPOSAL" with respect to a Party shall mean any
tender offer or exchange offer or any proposal for a merger, acquisition of all
of the stock or assets of, or other business combination involving the
acquisition of such Party or any of its Subsidiaries or the acquisition of a
substantial equity interest in, or a substantial portion of the assets of, such
Party or any of its Subsidiaries.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with such Person; (ii) any officer,
director, partner, employer, or direct or indirect beneficial owner of any 10%
or greater equity or voting interest of such Person; or (iii) any other Person
for which a Person described in clause (ii) acts in any such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated herein by
reference.
"ARTICLES OF MERGER" shall mean the Articles of Merger to be
executed by Seacoast and filed with the Secretary of State of the State of
Florida relating to the Merger as contemplated by Section 1.1.
"ASSETS" of a Person shall mean all of the assets,
properties, businesses and rights of such Person of every kind, nature,
character and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in
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whole or in part, whether or not carried on the books and records of such
Person, and whether or not owned in the name of such Person or any Affiliate of
such Person and wherever located.
"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated May 10, 1996, between PSHC and Seacoast.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person pursuant to
any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding, or undertaking of any
kind or character, or other document to which any Person is a party or that is
binding on any Person or its capital stock, Assets or business.
"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law, Order, or Permit,
(ii) any occurrence of any event that with the passage of time or the giving of
notice or both would constitute a breach or violation of, default under,
contravention of, or conflict with, any Contract, Law, Order, or Permit, or
(iii) any occurrence of any event that with or without the passage of time or
the giving of notice would give rise to a right of any Person to exercise any
remedy or obtain any relief under, terminate or revoke, suspend, cancel, or
modify or change the current terms of, or renegotiate, or to accelerate the
maturity or performance of, or to increase or impose any Liability under, any
Contract, Law, Order, or Permit.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to
pollution or protection of human health or the environment (including ambient
air, surface water, ground water, land surface, or subsurface strata) and which
are administered, interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction over, and
including common law in respect of, pollution or protection of the environment,
including the Comprehensive Environmental Response Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"EQUITY RIGHTS" shall mean all arrangements, calls,
commitments, Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, shares of the
capital stock of a Person or by which a Person is or may be bound to issue
additional shares of its capital stock or other Equity Rights.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"EXHIBITS" 1 through 6, inclusive, shall mean the Exhibits so
marked, copies of which are attached to this Agreement. Such Exhibits are
hereby incorporated by reference herein and made a part hereof, and may be
referred to in this Agreement and any other related instrument or document
without being attached hereto.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation
"FNMA" shall mean the Federal National Mortgage Association.
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"FBCA" shall mean the Florida Business Corporation Act.
"FIRST NATIONAL" shall mean First National Bank & Trust
Company of the Treasure Coast, a national banking association and a
Seacoast Subsidiary.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic substance
(as those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of governmental authorities and any
polychlorinated biphenyls).
"HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended.
"HSR ACT" shall mean Section 7A of the Xxxxxxx Act, as added
by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean copyrights, patents,
trademarks, service marks, service names, trade names, applications therefor,
technology rights and licenses, computer software (including any source or
object codes therefor or documentation relating thereto), trade secrets,
franchises, know-how, inventions, and other intellectual property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder.
"JOINT PROXY STATEMENT" shall mean the proxy statement used
by PSHC and Seacoast to solicit the approval of their respective shareholders
of the transactions contemplated by this Agreement, which shall include the
prospectus of Seacoast relating to the issuance of the Seacoast Common Stock to
holders of PSHC Common Stock.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter) shall mean those
facts that are known or should reasonably have been known after due inquiry by
the chairman, president, chief financial officer, chief accounting officer,
chief operating officer, chief credit officer, general counsel, any assistant
or deputy general counsel, or any senior, executive or other vice president of
such Person and the knowledge of any such persons obtained or which would have
been obtained from a reasonable investigation.
"LAW" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its Assets, Liabilities, or business, including those
promulgated, interpreted or enforced by any Regulatory Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or expense
(including costs of investigation, collection and defense), claim, deficiency,
guaranty or endorsement of or by any Person (other than endorsements of notes,
bills, checks, and drafts presented for collection or deposit in the ordinary
course of business) of any type, whether accrued, absolute or contingent,
liquidated or unliquidated, matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title retention
or other security arrangement, or any adverse right or interest, charge, or
claim of any nature
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whatsoever of, on, or with respect to any property or property interest, other
than (i) Liens for current property Taxes not yet due and payable, (ii) for
depository institution Subsidiaries of a Party, pledges to secure deposits and
other Liens incurred in the ordinary course of the banking business, (iii)
Liens which do not materially impair the use of or title to the Assets subject
to such Lien, and which are disclosed in Section 11.1 of the PSHC Disclosure
Memorandum or Seacoast Disclosure Memorandum, as applicable.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, governmental or other
examination or investigation, hearing, administrative or other proceeding
relating to or affecting a Party, its business, its Assets (including Contracts
related to it), or the transactions contemplated by this Agreement, but shall
not include regular, periodic examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"MATERIAL" for purposes of this Agreement shall be determined
in light of the facts and circumstances of the matter in question; provided
that any specific monetary amount stated in this Agreement shall determine
materiality in that instance.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ NATIONAL MARKET" shall mean the National
Market System of the National Association of Securities Dealers Automated
Quotations System.
"OPERATING PROPERTY" shall mean any property owned, leased,
or operated by the Party in question or by any of its Subsidiaries or in which
such Party or Subsidiary holds a security interest or other interest (including
an interest in a fiduciary capacity), and, where required by the context,
includes the owner or operator of such property, but only with respect to such
property.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi-judicial decision or award, ruling,
or writ of any federal, state, local or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PARTICIPATION FACILITY" shall mean any facility or property
in which the Party in question or any of its Subsidiaries participates in the
management and, where required by the context, said term means the owner or
operator of such facility or property, but only with respect to such facility
or property.
"PARTY" shall mean either PSHC or Seacoast, and "PARTIES"
shall mean both PSHC and Seacoast.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that is or
may be binding upon or inure to the benefit of any Person or its securities,
Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial
or governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group acting in concert, or any person acting in a
representative capacity.
"PSHC COMMON STOCK" shall mean the $0.01 par value common
stock of PSHC.
"PSHC DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Port St. Lucie National Bank Holding Corp. Disclosure
Memorandum" delivered prior to the date of this Agreement to Seacoast
describing in reasonable detail the matters contained therein and, with respect
to each disclosure made therein, specifically referencing each Section of this
Agreement under which such disclosure is being
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made. Information disclosed with respect to one Section shall not be deemed to
be disclosed for purposes of any other Section not specifically referenced with
respect thereto.
"PSHC ENTITIES" shall mean, collectively, PSHC and all PSHC
Subsidiaries.
"PSHC FINANCIAL STATEMENTS" shall mean (i) the consolidated
statements of condition (including related notes and schedules, if any) of PSHC
as of September 30, 1996, and as of December 31,1995 and 1994, and the related
statements of income, changes in shareholders' equity, and cash flows
(including related notes and schedules, if any) for the nine months ended
September 30, 1996, and for each of the three fiscal years ended December
31,1995, 1994 and 1993, as filed by PSHC in SEC Documents, and (ii) the
consolidated statements of condition of PSHC (including related notes and
schedules, if any) and related statements of income, changes in shareholders'
equity, and cash flows (including related notes and schedules, if any) included
in SEC Documents filed with respect to periods ended subsequent to September
30, 1996.
"PSHC MATERIAL ADVERSE EFFECT" shall mean an event, change or
occurrence which, individually or together with any other event, change or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of PSHC and its Subsidiaries, taken as a
whole, or (ii) the ability of PSHC to perform its obligations under this
Agreement or to consummate the Merger or the other transactions contemplated by
this Agreement, provided that "Material Adverse Effect" shall not be deemed to
include the impact of (a) changes in banking and similar Laws of general
applicability or interpretations thereof by courts or governmental authorities,
(b) changes in generally accepted accounting principles or regulatory
accounting principles generally applicable to banks and their holding
companies, (c) actions and omissions of PSHC (or any of its Subsidiaries) taken
with the prior informed written Consent of Seacoast in contemplation of the
transactions contemplated hereby, and (d) the direct effects of compliance with
this Agreement on the operating performance of PSHC, including expenses
incurred by PSHC in consummating the transactions contemplated by this
Agreement.
"PSHC STOCK PLANS" shall mean the existing stock option,
stock purchase and other stock-based plans of PSHC.
"PSHC SUBSIDIARIES" shall mean the Subsidiaries of PSHC,
which shall include the PSHC Subsidiaries described in Section 5.4 and any
corporation, bank, savings association, or other organization acquired as a
Subsidiary of PSHC in the future and held as a Subsidiary by PSHC at the
Effective Time.
"PSN BANK" shall mean Port St. Lucie National Bank, a
national banking association and a PSHC Subsidiary.
"PURCHASE PRICE PER SHARE" shall mean (i) the sum of (x) the
average of the closing prices on the Nasdaq National Market as reported by The
Wall Street Journal of Seacoast Common Stock for the 20 trading days preceding
the fifth trading day preceding the Closing Date (the "Seacoast Stock Price")
multiplied by 900,000 and (y) 1,242,953 (ii) divided by the number of shares of
PSHC Common Stock plus the number of shares of PSHC Common Stock subject to
PSHC Options, including PSHC Warrants, outstanding at the Effective Time.
"REGISTRATION STATEMENT" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any pre-effective
or post-effective amendments or supplements thereto, filed with the SEC by
Seacoast under the 1933 Act with respect to the shares of Seacoast Common Stock
to be issued to the shareholders of PSHC in connection with the transactions
contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC,
the NASD, the Federal Trade Commission, the United States Department of
Justice, the Board of the Governors of the Federal Reserve System, the Office
of the Comptroller of the Currency, the Federal Deposit Insurance Corporation,
and all
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other federal, state, county, local or other governmental or regulatory
agencies, authorities (including self-regulatory authorities),
instrumentalities, commissions, boards or bodies having jurisdiction over the
Parties and their respective Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative engaged by a
Person.
"SEACOAST CAPITAL STOCK" shall mean, collectively, the
Seacoast Common Stock, the Seacoast Preferred Stock and any other class or
series of capital stock of Seacoast.
"SEACOAST COMMON STOCK" shall mean the $0.10 par value Class
A common stock of Seacoast.
"SEACOAST DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Seacoast Banking Corporation of Florida Disclosure
Memorandum" delivered prior to the date of this Agreement to PSHC describing in
reasonable detail the matters contained therein and, with respect to each
disclosure made therein, specifically referencing each Section of this
Agreement under which such disclosure is being made. Information disclosed with
respect to one Section shall not be deemed to be disclosed for purposes of any
other Section not specifically referenced with respect thereto.
"SEACOAST ENTITIES" shall mean, collectively, Seacoast and all
Seacoast Subsidiaries.
"SEACOAST FINANCIAL STATEMENTS" shall mean (i) the
consolidated statements of condition (including related notes and schedules, if
any) of Seacoast as of September 30, 1996, and as of December 31, 1995 and
1994, and the related statements of income, changes in shareholders' equity,
and cash flows (including related notes and schedules, if any) for the nine
months ended September 30, 1996, and for each of the three fiscal years ended
December 31, 1995, 1994 and 1993, as filed by Seacoast in SEC Documents, and
(ii) the consolidated statements of condition and balance sheets of Seacoast
(including related notes and schedules, if any) and related statements of
income, changes in shareholders' equity, and cash flows (including related
notes and schedules, if any) included in SEC Documents filed with respect to
periods ended subsequent to September 30, 1996.
"SEACOAST MATERIAL ADVERSE EFFECT" shall mean an event,
change or occurrence which, individually or together with any other event,
change or occurrence, has a material adverse impact on (i) the financial
position, business, or results of operations of Seacoast and its Subsidiaries,
taken as a whole, or (ii) the ability of Seacoast to perform its obligations
under this Agreement or to consummate the Merger or the other transactions
contemplated by this Agreement, provided that "Material Adverse Effect" shall
not be deemed to include the impact of (a) changes in banking and similar Laws
of general applicability or interpretations thereof by courts or governmental
authorities, (b) changes in generally accepted accounting principles or
regulatory accounting principles generally applicable to banks and their
holding companies, (c) actions and omissions of Seacoast (or any of its
Subsidiaries) taken with the prior informed written Consent of PSHC in
contemplation of the transactions contemplated hereby, and (d) the direct
effects of compliance with this Agreement on the operating performance of
Seacoast, including expenses incurred by Seacoast in consummating the
transactions contemplated by this Agreement.
"SEACOAST PREFERRED STOCK" shall mean the $1.00 par value
preferred stock of Seacoast.
"SEACOAST STOCK PLANS" shall mean the existing stock option
and other stock-based compensation plans of Seacoast designated as follows: (i)
Seacoast Banking Corporation of Florida 1991 Stock Option and Stock
Appreciation Rights Plan and (ii) Seacoast Banking Corporation of Florida 1996
Long-term Incentive Plan.
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"SEACOAST STOCK PRICE" shall mean the average of the closing
prices on the Nasdaq National Market as reported by The Wall Street Journal of
Seacoast Common Stock for the 20 trading days preceding the fifth trading day
preceding the Closing Date.
"SEACOAST SUBSIDIARIES" shall mean the Subsidiaries of
Seacoast, which shall include the Seacoast Subsidiaries described in Section
6.4 and any corporation, bank, savings association, or other organization
acquired as a Subsidiary of Seacoast in the future and held as a Subsidiary by
Seacoast at the Effective Time.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed, or
required to be filed, by a Party or any of its Subsidiaries with any Regulatory
Authority pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of
1940, as amended, the Trust Indenture Act of 1939, as amended, and the rules
and regulations of any Regulatory Authority promulgated thereunder.
"SHAREHOLDERS' MEETINGS" shall mean the respective meetings
of the shareholders of PSHC and Seacoast to be held pursuant to Section 8.1,
including any adjournment or adjournments thereof.
"SIGNIFICANT SUBSIDIARY" shall mean any present or future
consolidated Subsidiary of the Party in question, the assets of which
constitute ten percent (10%) or more of the consolidated assets of such Party
as reflected on such Party's consolidated statement of condition prepared in
accordance with GAAP.
"SUBSIDIARIES" shall mean all those corporations,
associations, or other business entities of which the entity in question either
(i) owns or controls 50% or more of the outstanding equity securities either
directly or through an unbroken chain of entities as to each of which 50% or
more of the outstanding equity securities is owned directly or indirectly by
its parent (provided, there shall not be included any such entity the equity
securities of which are owned or controlled in a fiduciary capacity), (ii) in
the case of partnerships, serves as a general partner, (iii) in the case of a
limited liability company, serves as a managing member, or (iv) otherwise has
the ability to elect a majority of the directors, trustees or managing members
thereof.
"SURVIVING CORPORATION" shall mean Seacoast as the surviving
corporation resulting from the Merger.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing authority in
connection with Taxes, including any return of an affiliated or combined or
unitary group that includes a Party or its Subsidiaries.
"TAX" or "TAXES" shall mean any federal, state, county,
local, or foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment, sales, use,
transfer, license, payroll, franchise, severance, stamp, occupation, windfall
profits, environmental, federal highway use, commercial rent, customs duties,
capital stock, paid-up capital, profits, withholding, Social Security, single
business and unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax or governmental fee of any kind whatsoever, imposes or
required to be withheld by the United States or any state, county, local or
foreign government or subdivision or agency thereof, including any interest,
penalties, and additions imposed thereon or with respect thereto.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
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Allowance Section 5.9
Bank Merger Section 1.4
Bank Plan Section 1.4
Closing Section 1.2
Counties Section 7.1.
Effective Time Section 1.3
ERISA Affiliate Section 5.15(b)
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(b)
Lower Threshold Price Section 3.1(b)
Maximum Amount Section 8.15
Merger Section 1.1
PSHC Benefit Plans Section 5.15
PSHC Contracts Section 5.16
PSHC ERISA Plan Section 5.15
PSHC Options Section 3.6
PSHC Pension Plan Section 5.15
PSHC SEC Reports Section 5.5(a)
Seacoast Benefit Plans Section 6.15
Seacoast Contracts Section 6.16
Seacoast ERISA Plan Section 6.15
Seacoast Pension Plan Section 6.15
Seacoast SEC Reports Section 6.5(a)
Takeover Laws Section 5.21
Tax Opinion Section 9.1(h)
Wholesale Mortgage Business Section 5.16
(c) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
11.2 EXPENSES
Except as otherwise provided in this Section 11.2,
each of the Parties shall bear and pay all direct costs
and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including filing, registration and
application fees, printing fees, and fees and expenses of its own financial or
other consultants, investment bankers, accountants, and counsel, except that
each of the Parties shall bear and pay one-half of the filing fees payable in
connection with the Registration Statement and the Joint Proxy Statement and
printing costs incurred in connection with the printing of the Registration
Statement and the Joint Proxy Statement.
11.3 BROKERS AND FINDERS. Except for Austin Associates, Inc.
as to PSHC and except for The Xxxxxxxx-Xxxxxxxx Company as to Seacoast, each of
the Parties represents and warrants that neither it nor any of its officers,
directors, employees, or Affiliates has employed any broker or finder or
incurred any Liability for any financial advisory fees, investment bankers'
fees, brokerage fees, commissions, or finders' fees in connection with this
Agreement or the transactions contemplated hereby. In the event of a claim by
any broker or finder based upon his or its representing or being retained by or
allegedly representing or being retained by PSHC or by Seacoast, each of PSHC
and Seacoast, as the case may be, agrees to indemnify and hold the other Party
harmless of and from any Liability in respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement between the Parties with respect to
the transactions contemplated hereunder and supersedes all prior arrangements
or understandings
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with respect thereto, written or oral (except, as to Section 8.6(b), for the
Confidentiality Agreement). Nothing in this Agreement expressed or implied, is
intended to confer upon any Person, other than the Parties or their respective
successors, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, other than as provided in Sections 8.14 and 8.15.
11.5 AMENDMENTS.11.5 Amendments To the extent permitted by
Law, this Agreement may be amended by a subsequent writing signed by each of
the Parties upon the approval of each of the Parties, whether before or after
shareholder approval of this Agreement has been obtained; provided, that after
any such approval by the holders of PSHC Common Stock, there shall be made no
amendment that reduces or modifies in any material respect the consideration to
be received by holders of PSHC Common Stock; and further provided, that after
any such approval by the holders of Seacoast Common Stock, the provisions of
this Agreement relating to the manner or basis in which shares of PSHC Common
Stock will be exchanged for shares of Seacoast Common Stock shall not be
amended after the Shareholders' Meetings in a manner adverse to the holders of
Seacoast Common Stock without any requisite approval of the holders of the
issued and outstanding shares of Seacoast Common Stock entitled to vote
thereon.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, Seacoast,
acting through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in the
performance of any term of this Agreement by PSHC, to waive or extend the time
for the compliance or fulfillment by PSHC of any and all of its obligations
under this Agreement, and to waive any or all of the conditions precedent to
the obligations of Seacoast under this Agreement, except any condition which,
if not satisfied, would result in the violation of any Law. No such waiver
shall be effective unless in writing signed by a duly authorized officer of
Seacoast.
(b) Prior to or at the Effective Time, PSHC,
acting through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in the
performance of any term of this Agreement by Seacoast, to waive or extend the
time for the compliance or fulfillment by Seacoast of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of PSHC under this Agreement, except any condition
which, if not satisfied, would result in the violation of any Law. No such
waiver shall be effective unless in writing signed by a duly authorized officer
of PSHC.
(c) The failure of any Party at any time or
times to require performance of any provision hereof shall in no manner affect
the right of such Party at a later time to enforce the same or any other
provision of this Agreement. No waiver of any condition or of the breach of any
term contained in this Agreement in one or more instances shall be deemed to be
or construed as a further or continuing waiver of such condition or breach or a
waiver of any other condition or of the breach of any other term of this
Agreement.
11.7 ASSIGNMENT. Except as expressly contemplated hereby,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any Party hereto (whether by operation of Law or
otherwise) without the prior written consent of the other Party. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by the Parties and their respective successors and
assigns.
11.8 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
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PSHC: Port St. Lucie National Bank Holding Corp.
0000 X.X. St. Lucie Xxxx Xxxxxxxxx
Xxxx Xx. Xxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: J. Xxx Xxxxxxx, Xx.
Copy to Counsel: Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000 Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Seacoast: Seacoast Banking Corporation of Florida
000 Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Telecopy Number: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxx, III
Copy to Counsel: Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. XxxXxxxxx, III, Esq.
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Florida, without regard
to any applicable conflicts of Laws.
11.10 Counterparts This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
11.11 Captions; Articles and Sections The captions contained
in this Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to particular Articles or
Sections shall mean and refer to the referenced Articles and Sections of this
Agreement.
11.12 Interpretations Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against any
party, whether under any rule of construction or otherwise. No party to this
Agreement shall be considered the draftsman. The parties acknowledge and agree
that this Agreement has been reviewed, negotiated, and accepted by all parties
and their attorneys and shall be construed and interpreted according to the
ordinary meaning of the words used so as fairly to accomplish the purposes and
intentions of all parties hereto.
11.13 Enforcement of Agreement The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 Severability Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
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unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf by its duly authorized officers as of
the day and year first above written.
SEACOAST BANKING CORPORATION OF FLORIDA
By: /s/ Xxxxxx X. Xxxxxx, III
-----------------------------------------
President
PORT ST. LUCIE NATIONAL BANK HOLDING CORP.
By: /s/ J. XXX XXXXXXX, XX.
-----------------------------------------
President
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EXHIBIT 1 TO AGREEMENT
AND PLAN OF MERGER
PLAN OF MERGER
OF
PORT ST. LUCIE NATIONAL BANK
WITH AND INTO
FIRST NATIONAL BANK & TRUST COMPANY OF THE TREASURE COAST
This Plan of Merger ("Plan of Merger") is made and entered
into as of February 19, 1997, by and between PORT ST. LUCIE NATIONAL BANK, a
national banking association organized and existing under the laws of the
United States with its main office located in Port St. Lucie, Florida ("PSNB"),
and FIRST NATIONAL BANK & TRUST COMPANY OF THE TREASURE COAST, a national
banking association organized and existing under the laws of the United States
with its main office located in Stuart, Florida ("FNB").
FNB is a wholly-owned subsidiary of Seacoast Banking
Corporation of Florida, a corporation organized and existing under the laws of
the State of Florida, with its principal office located in Stuart, Florida
("Seacoast"). PSNB is a wholly-owned subsidiary of Port St. Lucie National Bank
Holding Corporation, a corporation organized and existing under the laws of the
State of Florida, with its principal office in Port St. Lucie, Florida
("PSHC"). Prior to the execution and delivery of this Plan of Merger, Seacoast
and PSHC have entered into a Agreement and Plan of Merger (the "Parent
Agreement") pursuant to which PSHC would merge with and into Seacoast. The
Parent Agreement also contemplates that PSNB will be merged with and into FNB.
The Boards of Directors of PSNB and FNB are of the opinion that the bests
interests of their respective banks would be served if PSNB is merged with and
into FNB on the terms and conditions provided in this Plan of Merger.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, PSNB and FNB hereby make, adopt and approve this
Plan of Merger in order to set forth the terms and conditions for the merger of
PSNB into FNB.
ARTICLE ONE
DEFINITIONS
Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
1.1 "PSNB Common Stock" shall mean the $5.00 par value
common stock of PSNB.
1.2 "Bank Merger" shall refer to the merger of PSNB
with and into FNB as provided in Section 2.1 of this Plan of Merger.
1.3 "FNB Common Stock" shall mean the $10.00 par value
common stock of FNB.
1.4 "Certificate of Merger" shall mean the Certificate of
Merger to be issued by the Office of the Comptroller of the Currency of the
United States approving the Bank Merger.
1.5 "Effective Time" shall mean the date and time on which
the Bank Merger becomes effective as specified in the Certificate of Merger.
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ARTICLE TWO
TERMS OF BANK MERGER
2.1 Merger. Subject to the terms and conditions set forth in
this Plan of Merger, at the Effective Time, PSNB shall be merged with and into
FNB under the Charter and Articles of Association of FNB pursuant to the
provisions of and with the effect provided in Xxxxx 00, Xxxxxx Xxxxxx Code,
Section 215a. FNB shall be the surviving bank and the receiving association
resulting from the Bank Merger and shall continue to conduct its business under
the name "FIRST NATIONAL BANK & TRUST COMPANY OF THE TREASURE COAST." The Bank
Merger shall be consummated pursuant to the terms of this Plan of Merger, which
has been approved and adopted by the respective Boards of Directors and
shareholders of FNB and PSNB.
2.2 Method of Converting Shares. All of the shares of FNB
Common Stock issued and outstanding at the Effective Time shall remain issued
and outstanding after the Effective Time and shall be unaffected by the Bank
Merger. At the Effective Time, the certificates representing all of the issued
and outstanding shares of PSNB Common Stock shall be surrendered to FNB for
cancellation and no consideration shall be issued in exchange therefor.
ARTICLE THREE
EFFECT OF BANK MERGER
3.1 Business of FNB. The business of FNB from and after the
Effective Time shall continue to be that of a national banking association. The
business shall be conducted from its main office located in Stuart, Florida and
at its legally established branches, which shall also include the main office
and all branches, whether in operation or approved but unopened, of PSNB at the
Effective Time.
3.2 Assumption of Rights. At the Effective Time, the separate
existence and corporate organization of PSNB shall be merged into and continued
in FNB, as the surviving bank and receiving association of the Bank Merger. All
rights, franchises and interests of PSNB and FNB in and to every type of
property (real, personal and mixed), and all choses in action of PSNB and FNB
shall be transferred to and vested in FNB as the surviving bank and receiving
association by virtue of the Bank Merger without any deed or other transfer.
FNB, upon consummation of the Bank Merger and without any order or other action
on the part of any court or otherwise, shall hold and enjoy all rights of
property, franchises and interests, including appointments, designations and
nominations, and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee,
receiver and committee of estates of lunatics, and in every other fiduciary
capacity, in the same manner and to the same extent as such rights, franchises,
and interests were held or enjoyed by either of PSNB or by FNB at the Effective
Time, subject to the conditions imposed by Xxxxx 00, Xxxxxx Xxxxxx Code,
Section 215a.
3.3 Assumption of Liabilities. All liabilities and
obligations of both of PSNB and of FNB of every kind and description shall be
assumed by FNB as the surviving bank and receiving association by virtue of the
Bank Merger, and FNB shall be bound thereby in the same manner and to the same
extent that either of PSNB or FNB was so bound at the Effective Time.
3.4 Articles of Association. At the Effective Time, following
consummation of the Bank Merger, the Articles of Association of FNB shall be in
the form set forth in Annex A to this Plan of Merger, as modified only by such
amendments as may be adopted by the sole shareholder of FNB prior to the
Effective Time. The Bylaws of FNB shall be in the form set forth in Annex B to
this Plan of Merger, as modified only by such amendments as may be adopted by
the sole shareholder of FNB prior to the Effective Time.
3.5 Officers, Employees and Directors. The officers and
employees of FNB immediately following the Effective Time shall include, among
others, the officers and employees of FNB and PSNB immediately prior to the
Effective Time. The Board of Directors of FNB immediately following the
Effective Time shall consist of the persons named in Annex C to this Plan of
Merger, including two persons from FNB's Board of
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Directors, each of whom shall serve until his respective successor is elected
and qualified or until a new Board of Directors is elected as provided in the
Articles of Association or Bylaws of FNB or as provided by law. All directors
of PSNB as of the Closing who do not become directors of FNB shall serve as
members of FNB's St. Lucie Advisory Board, and shall have such rights and
powers as are set out in FNB's Bylaws, as amended form time to time, and shall
receive fees for their service on such advisory board consistent with the fees
paid by FNB to members of its other advisory boards.
3.6 Capital Stock of FNB. The capital stock of FNB upon
completion of the Bank Merger shall be approximately $14.5 million, consisting
of 2,000,000 authorized shares and 1,450,000 issued and outstanding shares of
common stock of a par value of $10 per share. In addition, FNB shall have a
surplus of approximately $18 million and undivided profits, including
capital reserves, of approximately $38 million adjusted, however, for
earnings and expenses between December 31, 1996 and the Effective Time.
ARTICLE FOUR
EFFECTIVENESS
4.1 Conditions Precedent. Consummation of the Bank Merger is
conditioned upon (i) the Closing of the transactions contemplated by the Parent
Agreement and (ii) receipt of all approvals, consents, waivers, and other
clearances of all federal and state regulatory authorities having jurisdiction
over the transactions contemplated by this Plan of Merger.
4.2 Termination. This Plan of Merger may be terminated at any
time prior to the Effective Time by the parties hereto after termination of the
Parent Agreement in accordance with the provisions of Section 10.1 thereof.
4.3 Effectiveness. Subject to the satisfaction of all
requirements of applicable laws and regulations and the terms and conditions
set forth herein, the Bank Merger contemplated by this Plan of Merger shall be
and become effective at the time and on the date specified in the Certificate
of Merger.
ARTICLE FIVE
REPRESENTATIONS
5.1 Organization, Standing, and Power.0.1 Organization,
Standing, and Power PSNB is a bank duly organized and validly existing under
the Laws of the State of Florida, and has the power and authority to carry on
its business as now conducted and to own, lease and operate its Assets.
5.2 Authority; No Breach By Agreement.
(a) PSNB has the corporate power and
authority necessary to execute, deliver, and perform its obligations under this
Bank Plan of Merger and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Bank Plan of Merger and the
consummation of the transactions contemplated herein have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
PSNB. Subject to such requisite shareholder approval, this Agreement represents
a legal, valid, and binding obligation of PSNB, enforceable against PSNB in
accordance with its terms (except in all cases as such enforceability may be
limited by applicable, insolvency, reorganization, moratorium, or similar Laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
may be brought).
(b) Neither the execution and delivery of this
Bank Plan of Merger by PSNB, nor the consummation by PSNB of the transactions
contemplated hereby, nor compliance by PSNB with any of the
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provisions hereof, will except as specifically disclosed in the PSHC Disclosure
Memorandum delivered pursuant to the Parent Agreement (i) conflict with or
result in a breach of any provision of PSNB's Articles of Incorporation or
Bylaws, (ii) constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of any PSHC
Company under, any Contract or Permit of any PSHC Company, or (iii) subject to
receipt of the requisite approvals referred to in Section 4.1 of this Bank Plan
of Merger, violate any Law or Order applicable to any PSHC Company or any of
their respective material Assets.
(c) Other than in connection or compliance with
the provisions of the Securities Laws, applicable state corporate and
securities Laws, and other than Consents required from Regulatory Authorities,
and other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit
plans, or under, and other than Consents, filings, or notifications which, if
not obtained or made, are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on PSNB, no notice to, filing with, or
Consent of, any public body or authority is necessary for the consummation by
PSNB of the Merger and the other transactions contemplated in this Bank Plan of
Merger.
5.3 Capital Stock.
(a) The authorized capital stock of PSNB consists
of 5,000,000 shares of PSNB Common Stock, of which 5,000,000 shares
are issued and outstanding as of the date of this Bank Plan of Merger and not
more than 5,000,000 shares will be issued and outstanding at the Effective
Time. All of the issued and outstanding shares of capital stock of PSHC are
duly and validly issued and outstanding and are fully paid and nonassessable.
None of the outstanding shares of capital stock of PSNB has been issued in
violation of any preemptive rights of the current or past shareholders of PSNB.
(b) Except as set forth in Section 5.3(a) hereof,
there are no shares of capital stock or other equity securities of PSNB
outstanding and no outstanding Rights relating to the capital stock of PSNB.
ARTICLE SIX
MISCELLANEOUS
6.1 Amendment. To the extent permitted by law, this Plan of
Merger may be amended by a subsequent written instrument upon the approval of
the Boards of Directors of each of the parties hereto and upon execution of
such instrument by the duly authorized officers of each and by a majority of
the Boards of Directors of PSNB and FNB; provided that no amendment to this
Plan of Merger shall modify the requirements of regulatory approval as set
forth in Section 4.1 hereof.
6.2 Governing Law. This Plan of Merger shall be governed by
and construed in accordance with the laws of the State of Florida, except to
the extent that the federal laws of the United States of America apply to
consummation of the Bank Merger.
6.3 Headings. The headings in this Plan of Merger are
for convenience only and shall not affect the construction or interpretation of
this Plan of Merger.
6.4 Counterparts. This Plan of Merger may be executed in two
or more counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, PSNB and FNB has caused this Plan of Merger to be
executed on its behalf by its officers thereunto duly authorized and by a
majority of its Board of Directors, all as of the day and year first above
written.
ATTEST: FIRST NATIONAL BANK & TRUST COMPANY OF THE
TREASURE COAST
By: By:
------------------------------------- -------------------------------------------
Title: Title:
[BANK SEAL]
ATTEST: PORT ST. LUCIE NATIONAL BANK
By: By:
-------------------------------------- -------------------------------------------
Title: Title:
[BANK SEAL]
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EXHIBIT 2 TO AGREEMENT
AND PLAN OF MERGER
FORM OF AFFILIATE AGREEMENT
Seacoast Banking Corporation of Florida
P. O. Xxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, III
Executive Vice President
Gentlemen:
The undersigned is a shareholder of Port St. Lucie National Bank
Holding Corp. ("PSHC"), a corporation organized and existing under the laws of
the State of Florida, and will become a shareholder of Seacoast Banking
Corporation of Florida ("Seacoast"), a corporation organized and existing under
the laws of the State of Florida, pursuant to the transactions described in the
Agreement and Plan of Merger, dated as of February 19, 1997 (the "Agreement"),
by and between Seacoast and PSHC. Under the terms of the Agreement, PSHC will
be merged into and with Seacoast (the "Merger"), and the shares of the $0.01
par value common stock of PSHC ("PSHC Common Stock") will be converted into and
exchanged for shares of the $0.10 par value Class A common stock of Seacoast
("Seacoast Common Stock"). This Affiliate Agreement represents an agreement
between the undersigned and Seacoast regarding certain rights and obligations
of the undersigned in connection with the shares of Seacoast to be received by
the undersigned as a result of the Merger.
In consideration of the Merger and the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the undersigned and Seacoast hereby agree as
follows:
1. Affiliate Status. The undersigned understands and agrees that as to
PSHC he is an "affiliate" under Rule 145(c) as defined in Rule 405 of the Rules
and Regulations of the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended ("1933 Act"), and the undersigned
anticipates that he will be such an "affiliate" at the time of the Merger.
2. Initial Restriction on Disposition. The undersigned agrees that he
will not sell, transfer, or otherwise dispose of his interests in, or reduce
his risk relative to, any of the shares of Seacoast Common Stock into which his
shares of PSHC Common Stock are converted upon consummation of the Merger until
such time that the requirements of SEC Accounting Series Release Nos. 130 and
135 ("ASR 130 and 135") have been met. The undersigned understands that ASR 130
and 135 relate to publication of financial results of post-Merger combined
operations of Seacoast and PSHC. Seacoast agrees that it will publish such
results within 45 days after the end of the first fiscal quarter of Seacoast
containing the required period of post-Merger combined operations and that it
will notify the undersigned promptly following such publication.
3. Covenants and Warranties of Undersigned. The undersigned
represents, warrants and agrees that:
(a) The Seacoast Common Stock received by the undersigned as a result
of the Merger will be taken for his own account and not for others,
directly or indirectly, in whole or in part.
(b) Seacoast has informed the undersigned that any distribution by the
undersigned of Seacoast Common Stock has not been registered under the
1933 Act and that shares of Seacoast Common Stock received pursuant to
the Merger can only be sold by the undersigned (1) following
registration under the 1933 Act, or (2) in conformity with the volume
and other requirements of Rule 145(d) promulgated by the
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SEC as the same now exist or may hereafter be amended, or (3) to the
extent some other exemption from registration under the 1933 Act might
be available. The undersigned understands that Seacoast is under no
obligation to file a registration statement with the SEC covering the
disposition of the undersigned's shares of Seacoast Common Stock or to
take any other action necessary to make compliance with an exemption
from such registration available.
(c) The undersigned will, and will cause each of the other parties
whose shares are deemed to be beneficially owned by the undersigned
pursuant to Section 8 hereof to, have all shares of PSHC Common Stock
beneficially owned by the undersigned registered in the name of the
undersigned or in the name of any bank, broker-dealer, or clearinghouse
or nominee of any such bank, broker-dealer or clearinghouse, subject in
all cases to the restrictions contained herein and not for the purposes
of, or in any manner otherwise, changing the beneficial ownership of
such shares, reducing the undersigned's risk of ownership of such
shares, or avoiding the purposes of this Agreement. The undersigned
shall promptly notify any such bank, broker-dealer, clearinghouse or
nominee of the restrictions imposed hereby by providing such persons a
copy of this Agreement.
(d) During the 30 days immediately preceding the Effective Time of the
Merger, the undersigned has not sold, transferred, or otherwise disposed
of his interests in, or reduced his risk relative to, any of the shares
of PSHC Common Stock beneficially owned by the undersigned as of the
record date for determination of shareholders entitled to vote at the
Shareholders' Meeting of PSHC held to approve the Merger.
(e) The undersigned is aware that Seacoast intends to treat the Merger
as a tax-free reorganization under Section 368 of the Internal Revenue
Code ("Code") for federal income tax purposes. The undersigned agrees to
treat the transaction in the same manner as Seacoast for federal income
tax purposes. The undersigned acknowledges that Section 1.368-1(b) of
the Income Tax Regulations requires "continuity of interest" in order
for the Merger to be treated as tax-free under Section 368 of the Code.
This requirement is satisfied if, taking into account those PSHC
shareholders who receive cash in exchange for their stock, who receive
cash in lieu of fractional shares, or who dissent from the Merger, there
is no plan or intention on the part of the PSHC shareholders to sell or
otherwise dispose of the Seacoast Common Stock to be received in the
Merger that will reduce such shareholders' ownership to a number of
shares having, in the aggregate, a value at the time of the merger of
less than 50% of the total fair market value of the PSHC Common Stock
outstanding immediately prior to the Merger. The undersigned has no
prearrangement, plan or intention to sell or otherwise dispose of an
amount of his Seacoast Common Stock to be received in the Merger which
would cause the foregoing requirement not to be satisfied.
4. Restrictions on Transfer. The undersigned understands and agrees
that stop transfer instructions with respect to the shares of Seacoast Common
Stock received by the undersigned pursuant to the Merger will be given to
Seacoast's Transfer Agent and that there will be placed on the certificates for
such shares, or shares issued in substitution thereof, a legend stating in
substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED PURSUANT TO A
BUSINESS COMBINATION WHICH IS ACCOUNTED FOR AS A "POOLING OF INTERESTS"
AND MAY NOT BE SOLD, NOR MAY THE OWNER THEREOF REDUCE HIS RISKS RELATIVE
THERETO IN ANY WAY, UNTIL SUCH TIME AS SEACOAST BANKING CORPORATION OF
FLORIDA ("SEACOAST") HAS PUBLISHED THE FINANCIAL RESULTS COVERING AT
LEAST 30 DAYS OF COMBINED OPERATIONS AFTER THE EFFECTIVE DATE OF THE
MERGER THROUGH WHICH THE BUSINESS COMBINATION WAS EFFECTED. IN ADDITION,
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT OR UNLESS (1) COVERED BY AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (2)
IN ACCORDANCE WITH (I) RULE 145(D) (IN THE CASE OF SHARES ISSUED TO AN
INDIVIDUAL WHO IS NOT AN AFFILIATE OF SEACOAST) OR (II) RULE 144 (IN THE
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CASE OF SHARES ISSUED TO AN INDIVIDUAL WHO IS AN AFFILIATE OF SEACOAST)
OF THE RULES AND REGULATIONS OF SUCH ACT, OR (3) IN ACCORDANCE WITH A
LEGAL OPINION SATISFACTORY TO COUNSEL FOR SEACOAST THAT SUCH SALE OR
TRANSFER IS OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT."
Such legend will also be placed on any certificate representing Seacoast
securities issued subsequent to the original issuance of the Seacoast Common
Stock pursuant to the Merger as a result of any transfer of such shares or any
stock dividend, stock split, or other recapitalization as long as the Seacoast
Common Stock issued to the undersigned pursuant to the Merger has not been
transferred in such manner to justify the removal of the legend therefrom. Upon
the request of the undersigned, Seacoast shall cause the certificates
representing the shares of Seacoast Common Stock issued to the undersigned in
connection with the Merger to be reissued free of any legend relating to
restrictions on transfer by virtue of ASR 130 and 135 as soon as practicable
after the requirements of ASR 130 and 135 have been met. In addition, if the
provisions of Rules 144 and 145 are amended to eliminate restrictions
applicable to the Seacoast Common Stock received by the undersigned pursuant to
the Merger, or at the expiration of the restrictive period set forth in Rule
145(d), Seacoast, upon the request of the undersigned, will cause the
certificates representing the shares of Seacoast Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to the restrictions set forth in Rules 144 and 145(d) upon receipt by
Seacoast of an opinion of its counsel to the effect that such legend may be
removed.
5. Understanding of Restrictions on Dispositions. The undersigned has
carefully read the Agreement and this Affiliate Agreement and discussed their
requirements and effects upon his ability to sell, transfer, or otherwise
dispose of the shares of Seacoast Common Stock received by the undersigned, to
the extent he believes necessary, with his counsel or counsel for PSHC.
6. Filing of Reports by Seacoast. Seacoast agrees, for a period of
three years after the effective date of the Merger, to file on a timely basis
all reports required to be filed by it pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, so that the public information provisions of
Rule 145(d) promulgated by the SEC as the same are presently in effect will be
available to the undersigned in the event the undersigned desires to transfer
any shares of Seacoast Common Stock issued to the undersigned pursuant to the
Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to sell or
otherwise transfer the shares of Seacoast Common Stock received by him in
connection with the Merger at any time during the restrictive period set forth
in Rule 145(d), the undersigned will provide the necessary representation
letter to the transfer agent for Seacoast Common Stock together with such
additional information as the transfer agent may reasonably request. If
Seacoast's counsel concludes that such proposed sale or transfer complies with
the requirements of Rule 145(d), Seacoast shall cause such counsel to provide
such opinions as may be necessary to Seacoast's Transfer Agent so that the
undersigned may complete the proposed sale or transfer.
8. Acknowledgments and Further Agreements. The undersigned recognizes
and agrees that the foregoing provisions also apply to all shares of the
capital stock of PSHC and Seacoast that are deemed to be beneficially owned by
the undersigned pursuant to applicable federal securities laws, which the
undersigned agrees may include, without limitation, shares owned or held in the
name of (i) the undersigned's spouse, (ii) any relative of the undersigned or
of the undersigned's spouse who has the same home as the undersigned, (iii) any
trust or estate in which the undersigned, the undersigned's spouse, and any
such relative collectively own at least a 10% beneficial interest or of which
any of the foregoing serves as trustee, executor, or in any similar capacity,
and (iv) any corporation or other organization in which the undersigned, the
undersigned's spouse and any such relative collectively own at least 10% of any
class of equity securities or of the equity interest. The undersigned further
recognizes that, in the event that the undersigned is a director or officer of
Seacoast or becomes a director or officer of Seacoast upon consummation of the
Merger, among other things, any sale of Seacoast Common Stock by the
undersigned within a period of less than six months following the effective
time of the Merger may subject the undersigned to liability pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended.
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9. Miscellaneous. This Affiliate Agreement is the complete agreement
between Seacoast and the undersigned concerning the subject matter hereof. Any
notice required to be sent to any party hereunder shall be sent by registered
or certified mail, return receipt requested, using the addresses set forth
herein or such other address as shall be furnished in writing by the parties.
This Affiliate Agreement shall be governed by the laws of the State of Florida.
This Affiliate Agreement is executed as of the 19th day of February,
1997.
Very truly yours,
---------------------------
Signature
---------------------------
Print Name
---------------------------
---------------------------
---------------------------
Address
[add below the signatures of all registered owners
of shares deemed beneficially owned by the affiliate]
---------------------------
Name:
---------------------------
Name:
---------------------------
Name:
AGREED TO AND ACCEPTED as of
February ___, 1997
SEACOAST BANKING CORPORATION OF FLORIDA
By:
---------------------------------
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EXHIBIT 4 TO AGREEMENT
AND PLAN OF MERGER
FORM OF DIRECTOR'S AGREEMENT
THIS DIRECTOR'S AGREEMENT ("Agreement") is made and entered
into as of the 19th day of February, 1997, by and between the undersigned,
______________________, a resident of ______________, Florida, and Seacoast
Banking Corporation of Florida, a corporation organized and existing under the
laws of the State of Florida ("Seacoast").
On even date herewith, Seacoast and Port St. Lucie National
Bank Holding Corp., a corporation organized and existing under the laws of the
State of Florida ("PSHC"), have entered into an Agreement and Plan of Merger
(the "Merger Agreement"). The Merger Agreement generally provides for the
merger of PSHC with and into Seacoast ("Merger"), and the conversion of the
issued and outstanding shares of the $0.01 par value common stock of PSHC
("PSHC Common Stock") into shares of the $0.10 par value Class A common stock
of Seacoast. The transactions contemplated by the Merger Agreement are subject
to the affirmative vote of the shareholders of PSHC, the receipt of certain
regulatory approvals and the satisfaction of other conditions.
The undersigned is a member of the Board of Directors of PSHC
and is the owner of _________ shares of PSHC Common Stock and has rights by
option, warrants and otherwise to acquire _________ additional shares of PSHC
Common Stock ("Shares"). To induce Seacoast to enter into the Merger Agreement,
the undersigned is entering into this Agreement with Seacoast to set forth
certain terms and conditions governing the actions to be taken by the
undersigned with respect to the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions
contemplated by the Merger Agreement and the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties, intending to be legally
bound, agree as follows:
1. Without the prior written consent of Seacoast, the
undersigned shall not transfer, sell, assign, convey or encumber any of the
Shares during the term of this Agreement, except to Seacoast pursuant to the
terms of the Merger Agreement. Without limiting the generality of the
foregoing, the undersigned shall not grant to any party any option or right to
purchase the Shares or any interest therein. Further, except with respect to
the Merger, the undersigned shall not approve or ratify any agreement or
contract pursuant to which the Shares would be transferred to any other party
as a result of a consolidation, merger, reorganization or acquisition.
2. The undersigned intends to, and will, vote all of the
Shares beneficially owned by him (and with respect to which he has voting
power) in favor of the Merger. The undersigned will also recommend that the
shareholders of PSHC approve the Merger when the same is presented to the
shareholders for consideration in properly prepared proxy materials, subject
only to the undersigned's legal obligations (if any) as a director of PSHC, and
will use his or her best efforts to effect consummation of the Merger and the
other transactions contemplated by the Merger Agreement. Further, the
undersigned intends to, and will, surrender the certificate or certificates
representing his or her Shares which are beneficially owned by him (and with
respect to which he has sole dispositive power) to Seacoast upon consummation
of the Merger as described in the Merger Agreement.
3. The undersigned covenants and agrees with Seacoast that
for a period of two years after the effective time of the Merger, the
undersigned shall not, without the prior written consent of Seacoast, directly
or indirectly serve as a consultant to, serve as a management official of, or
be or become a major shareholder of any Depository Institution having an office
in Indian River, St. Lucie and/or Xxxxxx Counties, Florida. It is expressly
understood that the covenants contained in this paragraph 3 do not apply to (i)
"management official" positions which the undersigned holds with financial
institutions other than PSHC as of the date of this Agreement,
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(ii) securities holdings which cause the undersigned to be deemed a major
shareholder of a Depository Institution other than PSHC as of the date of this
Agreement, or (iii) advisory relationships with a Depository Institution which
the undersigned has as of the date of this Agreement or may have after the date
hereof solely in the capacity as legal counsel. For the purposes of the
covenants contained in this paragraph 3, the following terms shall have the
following respective meanings:
(a) The term "management official" shall refer to service of
any type which gives the undersigned the authority to participate,
directly or indirectly, in policy-making functions. This includes, but
is not limited to, service as an organizer, officer, director, or
advisory director of a Depository Institution. It is expressly
understood and agreed that the undersigned may be deemed a management
official of the Depository Institution whether or not he holds any
official, elected, or appointed position with such Depository
Institution.
(b) The term "Depository Institution" shall refer to any
person which engages in the business of making loans and taking deposits
or which owns or controls, or is under common control with, a company
which engages in such business.
(c) The term "major shareholder" shall refer to the
beneficial ownership of 2% or more of any class of voting securities of
such company or the ownership of 2% of the total equity interest in such
company, however denominated.
4. The undersigned waives and releases any claims and/or
rights he may have in or under the PSHC directors deferred compensation plan
(the "Deferred Plan"), except for the delivery to the undersigned of any cash
surrender value of any insurance policies held with respect to the
undersigned's accrued benefits under the Deferred Plan, net of any
cancellation, liquidation or surrender charges or fees.
5. The undersigned acknowledges and agrees that Seacoast
could not be made whole by monetary damages in the event of any default by the
undersigned of the terms and conditions set forth in this Agreement. It is
accordingly agreed and understood that Seacoast in addition to any other remedy
which it may have at law or in equity, shall be entitled to an injunction,
injunctions or a restraining order or orders to prevent breaches of this
Agreement and specifically to enforce the terms and provisions hereof in any
action instituted in any court of the United States or in any state having
appropriate jurisdiction.
6. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
7. Except with respect to the covenants contained in
paragraph 3, which shall be governed by the terms set forth therein and shall
be effective only upon consummation of the Merger, the covenants and
obligations set forth in this Agreement shall expire and be of no further force
and effect when the Merger Agreement has been terminated.
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IN WITNESS WHEREOF, this Agreement has been duly executed
under seal and delivered by the undersigned as of the day and year first above
written.
WITNESS
________________________ _______________________________(SEAL)
Name:__________________________
(Please print or type)
ATTEST: SEACOAST BANKING CORPORATION OF
FLORIDA
By:_____________________ By:__________________________________
Secretary Executive President
[CORPORATE SEAL]
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EXHIBIT 5 TO AGREEMENT
AND PLAN OF MERGER
FORM OF CLAIMS LETTER
February 19, 1997
Seacoast Banking Corporation of Florida
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, III
Executive Vice President
Gentlemen:
This letter is delivered pursuant to Section 9.2(i) of the Agreement
and Plan of Merger ("Merger Agreement"), dated as of February 19,1997 by and
Seacoast Banking Corporation of Florida ("Seacoast") and Port St. Lucie
National Bank Holding Corp. ("PSHC")
Concerning claims which the undersigned may have against PSHC,
Seacoast or any of their respective Subsidiaries in my capacity as an officer,
director, employee, partner, Controlling Person or Affiliate of PSHC or its
Subsidiaries, and in consideration of the premises, and the mutual covenants
contained herein and in the Merger Agreement and the mutual benefits to be
derived hereunder and thereunder, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the undersigned,
intending to be legally bound, I hereby affirm and agree to the following in
each and every such capacity of the undersigned:
1. CLAIMS. The undersigned does not have, and is not aware of, any
claims it might have against Seacoast, PSHC or any of their respective
Subsidiaries, except for (i) compensation for services rendered that have
accrued but not yet been paid in the ordinary course of business consistent
with past practice, (ii) contract rights, under loan commitments and agreements
between the undersigned and PSHC or its subsidiaries, specifically limited to
possible future advances in accordance with the terms of such commitments or
agreements, (iii) certificates of deposits, (iv) payment obligations under the
PSHC Directors Deferred Compensation Plan, (if any) consistent with any subject
to the terms and conditions of the Merger Agreement and the undersigned's
Director's Agreement with Seacoast (if applicable), and (v) obligations of any
PSHC Entity under any lease agreement between Xxxxxx X. Xxxxxxx and PSHC or its
subsidiaries consistent with Section 4 of the Director's Agreement entered into
by the undersigned.
2. RELEASES. The undersigned hereby releases and forever discharges
Seacoast, PSHC, and their respective directors, officers, employees, agents,
attorneys, representatives, Subsidiaries, partners, affiliates, controlling
persons and insurers, and its successors and assigns, and each of them
(hereinafter, individually and collectively, the "Releasees") of and from any
and all liabilities, claims, demands, debts, accounts, covenants, agreements,
obligations, costs, expenses, actions or causes of action of every nature,
character or description, now accrued or which may hereafter accrue, without
limitation and whether or not in law, equity or otherwise, based in whole or in
part on any facts, conduct, activities, transactions, events or occurrences
known or unknown, matured or unmatured, contingent or otherwise, which have or
allegedly have existed, occurred, happened, arisen or transpired from the
beginning of time to the date of the closing of the transactions contemplated
by the Merger Agreement, except for (i) compensation for services rendered that
have accrued but not yet been paid in the
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ordinary course of business consistent with past practice or (ii) contract
rights, under loan commitments and agreements between the undersigned and PSHC
or its subsidiaries (collectively, the "Claims"). The undersigned represents,
warrants and covenants that no Claim released herein has been assigned,
expressly, impliedly, by operation of law or otherwise, and that all Claims
released hereby are owned solely by the undersigned, which has the sole
authority to release them.
3. INDEMNITY. The undersigned shall indemnify and hold harmless, to
the fullest extent permitted by law, the Releasees from and against any and all
Claims which are released hereby and all claims, damages, losses, liabilities,
actions and expenses, including, without limitation, reasonable attorneys' fees
and disbursements, arising from, out of, or in connection with the performance
or nonperformance of any obligation of the undersigned hereunder, or any action
or proceeding in respect thereof.
4. FORBEARANCE. The undersigned shall forever refrain and
forebear from commencing, instituting or prosecuting any lawsuit, action, claim
or proceeding before or in any court, regulatory, governmental, arbitral or
other authority to collect or enforce any Claims which are released and
discharged hereby.
5. MISCELLANEOUS.
(a) This Release shall be governed and construed in accordance with
the laws of the State of Florida (other than the choice of law provisions
thereof).
(b) This Release contains the entire agreement between the parties
with respect to the Claims released hereby, and such Release supersedes all
prior agreements, arrangement or understandings (written or otherwise) with
respect to such Claims and no representation or warranty, oral or written,
express or implied, has been made by or relied upon by any party hereto, except
as expressly contained herein, in the Merger Agreement.
(c) This Release shall be binding upon and inure to the benefit of
the undersigned and the Releasees and their respective successors and assigns.
(d) This Release may not be modified, amended or rescinded except
by the written agreement of the undersigned and the Releasees, it being the
express understanding of the undersigned and the Releasees that no term hereof
may be waived by the action, inaction or course of delaying by or between the
undersigned or the Releasees, except in strict accordance with this paragraph,
and further that the waiver of any breach of this Release shall not constitute
or be construed as the waiver of any other breach of the terms hereof.
(e) The undersigned represents, warrants and covenants that it is
fully aware of its rights to discuss any and all aspects of this matter with
any attorney chosen by it, and that it has carefully read and fully understands
all the provisions of this Release, and that it is voluntarily entering into
this Release.
(f) This Release is effective when signed by the undersigned and
delivered to Seacoast and acknowledged by Seacoast, and its operation to
extinguish all of the Claims released hereby is not dependent on or affected by
the performance or non-performance of any future act by the undersigned or the
Releasees.
Unless otherwise defined herein, all capitalized terms shall have the
same meanings as provided in the Merger Agreement.
Sincerely,
-----------------------------------------------------
Signature of Officer, Director, or Controlling Person
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On behalf of Seacoast, the undersigned thereunto duly authorized,
acknowledges receipt of this letter as of __________________, 1997.
Seacoast Banking Corporation of Florida
By:
----------------------------------
Name:
Title:
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