PLAN OF MERGER AND MERGER AGREEMENT by and between TIB FINANCIAL CORP. and THE BANK OF VENICE and TBV INTERIM BANK (In Organization) Dated as of November 13, 2006
Exhibit
10.1
by
and between
and
THE
BANK OF VENICE
and
TBV
INTERIM BANK
(In
Organization)
Dated
as of
November
13, 2006
TABLE
OF CONTENTS
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Page
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ARTICLE
1 TRANSACTIONS AND TERMS OF MERGER
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2
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1.1
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Merger.
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2
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1.2
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Time
and Place of Closing.
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2
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1.3
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Effective
Time.
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2
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1.4
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Execution
of Director Agreements
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2
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1.5
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Merger
of Banking Subsidiaries
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2
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ARTICLE
2 EFFECT OF MERGER
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2
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2.1
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Charter
Documents.
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2
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2.2
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Executive
Officers and Directors.
|
3
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2.3
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Effect
of Merger.
|
3
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2.4
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Business
of Surviving Bank.
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3
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2.5
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Principal
Office and Branches.
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3
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2.6
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Capital
of Surviving Bank.
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3
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2.7
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Addition
to TIB Board of Directors.
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3
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ARTICLE
3 CONVERSION OF CONSTITUENTS’ CAPITAL SHARES
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3
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3.1
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Manner
of Converting Shares.
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4
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3.2
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Anti-Dilution
Provisions.
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6
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3.3
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Shares
Held by BANK.
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6
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3.4
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Dissenting
Stockholders.
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6
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3.5
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Fractional
Shares.
|
7
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ARTICLE
4 EXCHANGE OF SHARES
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7
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4.1
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Exchange
Procedures.
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7
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4.2
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Rights
of Former BANK Stockholders.
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8
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4.3
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Identity
of Recipient of TIB Common Stock.
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8
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4.4
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Lost
or Stolen Certificates.
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8
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4.5
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Laws
of Escheat.
|
9
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ARTICLE
5 REPRESENTATIONS AND WARRANTIES OF BANK
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9
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5.1
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Corporate
Organization, Standing and Power.
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9
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5.2
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Authority;
No Breach By Agreement.
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9
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5.3
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Capital
Stock.
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10
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5.4
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BANK
Subsidiaries.
|
11
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5.5
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Financial
Statements.
|
11
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5.6
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Absence
of Undisclosed Liabilities.
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12
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5.7
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Absence
of Certain Changes or Events.
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12
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5.8
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Tax
Matters.
|
12
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5.9
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Loan
Portfolio; Documentation and Reports.
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13
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5.10
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Assets;
Insurance.
|
15
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5.11
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Environmental
Matters.
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15
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5.12
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Compliance
with Laws.
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16
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5.13
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Labor
Relations; Executive Officers
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17
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5.14
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Employee
Benefit Plans.
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17
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5.15
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Material
Contracts.
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19
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5.16
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Legal
Proceedings.
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20
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5.17
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Reports.
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20
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5.18
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Statements
True and Correct.
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21
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5.19
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Accounting,
Tax and Regulatory Matters.
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21
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5.20
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Offices.
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21
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5.21
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Data
Processing Systems.
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22
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5.22
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Intellectual
Property.
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22
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5.23
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Administration
of Trust Accounts.
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22
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5.24
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Advisory
Fees.
|
22
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5.25
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Regulatory
Approvals.
|
22
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5.26
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Opinion
of Counsel.
|
22
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5.27
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Repurchase
Agreements; Derivatives Contracts.
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22
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5.28
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Anti-takeover
Provisions.
|
23
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5.29
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Transactions
with Management.
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23
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5.30
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Deposits.
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23
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5.31
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Accounting
Controls.
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23
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5.32
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Deposit
Insurance.
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24
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5.33
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Registration
Obligations.
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24
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5.34
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Charter
Provisions
|
24
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ARTICLE
6 REPRESENTATIONS AND WARRANTIES OF TIB
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24
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6.1
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Organization,
Standing and Power.
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24
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6.2
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Authority;
No Breach By Agreement.
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24
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6.3
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Capital
Stock.
|
25
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6.4
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Reports
and Financial Statements.
|
25
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6.5
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Absence
of Undisclosed Liabilities.
|
26
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6.6
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Absence
of Certain Changes or Events.
|
26
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6.7
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Compliance
with Laws.
|
26
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6.8
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Legal
Proceedings.
|
27
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6.9
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Statements
True and Correct.
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27
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6.10
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Tax
and Regulatory Matters.
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27
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6.11
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Regulatory
Approvals.
|
27
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6.12
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Opinion
of Counsel.
|
28
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ARTICLE
7 CONDUCT OF BUSINESS PENDING CONSUMMATION
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28
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7.1
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Covenants
of Both Parties.
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28
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7.2
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Covenants
of BANK.
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29
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7.3
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Covenants
of TIB.
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32
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7.4
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Adverse
Changes in Condition.
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32
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7.5
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Reports.
|
32
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7.6
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Acquisition
Proposals.
|
32
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7.7
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NASDAQ
Qualification.
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33
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ARTICLE
8 ADDITIONAL AGREEMENTS
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34
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8.1
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Regulatory
Matters.
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34
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8.2
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Access
to Information.
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35
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8.3
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Efforts
to Consummate.
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36
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8.4
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BANK
Stockholders’ Meeting.
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36
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8.5
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Certificate
of Objections.
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37
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8.6
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Publicity.
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37
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8.7
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Expenses.
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37
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8.8
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Failure
to Close.
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38
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8.9
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Fairness
Opinion.
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38
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8.10
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Tax
Treatment.
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38
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8.11
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Agreement
of Affiliates.
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38
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8.12
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Environmental
Audit; Title Policy; Survey.
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39
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8.13
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Compliance
Matters.
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39
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8.14
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Conforming
Accounting and Reserve Policies.
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39
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8.15
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Notice
of Deadlines.
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39
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8.16
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Fixed
Asset Inventory.
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40
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8.17
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Directors’
and Officers’ Indemnification.
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40
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8.18
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Employee
Matters.
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41
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ARTICLE
9 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
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42
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9.1
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Conditions
to Obligations of Each Party.
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42
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9.2
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Conditions
to Obligations of TIB and TIB-SUB.
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43
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9.3
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Conditions
to Obligations of BANK.
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46
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ARTICLE
10 TERMINATION
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10.1
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Termination.
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47
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10.2
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Effect
of Termination.
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49
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10.3
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Non-Survival
of Representations and Covenants.
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50
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ARTICLE
11 MISCELLANEOUS
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50
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11.1
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Definitions.
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50
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11.2
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Entire
Agreement.
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59
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11.3
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Amendments.
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59
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11.4
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Waivers.
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59
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11.5
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Assignment.
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59
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11.6
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Notices.
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59
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11.7
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Brokers
and Finders.
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60
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11.8
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Governing
Law.
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60
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11.9
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Counterparts.
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61
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11.10
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Captions.
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61
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11.11
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Enforcement
of Agreement.
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61
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11.12
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Severability.
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61
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11.13
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Construction
of Terms.
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61
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11.14
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Schedules.
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61
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11.15
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Exhibits
and Schedules.
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62
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11.16
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No
Third Party Beneficiaries.
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62
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11.17
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Alternative
Structure
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62
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THIS
PLAN OF MERGER AND MERGER AGREEMENT
(this
“Agreement”) is made and entered into as of November 13, 2006, by and between
The
Bank of Venice
(“BANK”), a Florida state chartered bank with its principal office located at
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx, 00000-0000; TIB
Financial Corp.
(“TIB”),
a corporation organized and existing under the laws of the State of Florida,
with its principal office located at 000 0xx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx,
00000-0000; and TBV
Interim Bank
(“TIB-SUB”), an interim banking corporation in organization under the laws of
the State of Florida with its principal office to be located at 000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx, 00000-0000.
Preamble
The
Boards of Directors of TIB and BANK are of the opinion that the transactions
described herein are in the best interests of the parties and their respective
stockholders. This Agreement provides for the acquisition of BANK by TIB
pursuant to the merger (the “Merger”) of TIB-SUB (a wholly-owned interim
subsidiary of TIB) with and into BANK. TIB-SUB will be a new Florida banking
corporation formed by TIB as soon as practicable after the execution of this
Agreement solely for the purpose of facilitating the Merger. At the effective
time of such Merger, the outstanding shares of the capital stock of BANK shall
be converted into the right to receive shares of the common stock of TIB (except
as provided herein). As a result, stockholders of BANK shall become stockholders
of TIB, and the assets and operations of BANK and TIB-SUB shall be combined
under the charter of BANK. The transactions described in this Agreement are
subject to the approvals of the stockholders of BANK, the sole stockholder
of
TIB-SUB, the FDIC, the Federal Reserve Board, the Florida Office of Financial
Regulation, and the satisfaction of certain other conditions described in this
Agreement. It is the intention of the parties to this Agreement that, for
federal income tax purposes, the Merger shall qualify as a “reorganization”
within the meaning of Section 368(a) of the Internal Revenue Code.
After
consideration of the mutual benefits and advantages of the Merger to their
respective companies and to the stockholders of each, the Boards of Directors
of
TIB and BANK are of the opinion that the objectives of the Merger can best
be
realized through the continued operation of BANK as a separately chartered
community bank conducting business substantially as such business was conducted
prior to the Effective Time under the management and Board of Directors of
BANK
as constituted at the date of this Agreement, subject to such changes as are
set
forth in this Agreement. Accordingly, TIB and BANK hereby affirm their mutual
intention that BANK will be operated as a separately chartered bank subsidiary
of TIB following completion of the Merger, operating under the name “The Bank of
Venice,” and not as a branch or operating division of TIB Bank.
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 agree as follows:
ARTICLE
1
TRANSACTIONS
AND TERMS OF MERGER
1.1 Merger.
Subject
to the terms and conditions of this Agreement, at the Effective Time, TIB-SUB
shall be merged with and into BANK in accordance with the provisions of the
FFIC. At the Effective Time, the separate corporate existence of TIB-SUB shall
cease, and BANK shall be the surviving bank resulting from the Merger (the
“Surviving Bank”) and shall continue to be governed by the laws of the State of
Florida. The Merger will be consummated pursuant to the terms of this Agreement,
which has been approved and adopted by the respective Boards of Directors of
TIB
and BANK.
1.2 Time
and Place of Closing.
The
place
of Closing shall be at the offices of TIB, Naples, Florida, or such other place
as may be mutually agreed upon by the Parties. The Closing will take place
at
9:00 A.M. Eastern Standard Time on such date and time as the Parties, acting
through their chief executive officers may mutually agree. Subject to the terms
and conditions hereof, unless otherwise mutually agreed upon in writing by
the
chief executive officers of each Party, the Closing shall occur on the last
business day of the month in which the closing conditions set forth in
Article 9 below have been satisfied (or waived pursuant to
Section 11.4 of this Agreement); provided that the Closing shall not occur
prior to February 28, 2007.
1.3 Effective
Time.
The
Merger and other transactions provided for in this Agreement shall become
effective on the date and at the time specified in a Certificate of Merger
to be
issued by the Director of the Florida Office of Financial Regulation (the
“Effective Time”), which Certificate of Merger, along with this Agreement, shall
be delivered for filing to the Secretary of State of the State of Florida.
Unless TIB and BANK otherwise mutually agree in writing, the Parties shall
use
their best efforts to cause the Effective Time to occur on the date of
Closing.
1.4 Execution
of Director Agreements.
Immediately prior to the execution of this Agreement and as a condition hereto,
each of the Directors of BANK has executed and delivered to TIB a Stockholders
Agreement and a Non-competition Agreement Related to the Sale of
Goodwill.
ARTICLE
2
EFFECT
OF MERGER
2.1 Charter
Documents.
The
Articles of Incorporation of BANK in effect immediately prior to the Effective
Time shall be the Articles of Incorporation of the Surviving Bank until amended
in accordance with applicable law. The complete text of the Articles of
Incorporation of the Surviving Bank is set forth at Exhibit
A
hereto,
which Exhibit is incorporated by reference herein. The Bylaws of BANK in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Bank until amended in accordance with applicable law.
2.2 Executive
Officers and Directors.
The
name
and address of each Executive Officer and Director of the Surviving Bank is
set
forth on Exhibit B
hereto.
Directors of the Surviving Bank will be elected annually and shall serve until
the next election of directors.
2.3 Effect
of Merger.
The
Merger shall have the effects specified in Section 658.45 of the FFIC. All
assets of TIB-SUB, as they exist at the Effective Time, shall pass to and vest
in the Surviving Bank without any conveyance or other transfer, and the
Surviving Bank shall be considered the same business and corporate entity as
each constituent financial institution with all the rights, powers, and duties
of each constituent financial institution, and the Surviving Bank shall be
responsible for all the liabilities of every kind and description of each of
the
financial institutions existing as of the Effective Time.
2.4 Business
of Surviving Bank.
The
business of the Surviving Bank shall be that of a general commercial bank.
The
Surviving Bank shall not have trust powers as of the Effective Time. The name
of
the Surviving Bank shall be “The Bank of Venice.”
2.5 Principal
Office and Branches.
The
principal office of the Surviving Bank shall be located at 000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxx, 00000-0000. A list of the principal office and branches
of each of TIB-SUB, BANK, and the Surviving Bank is attached hereto as
Exhibit C.
2.6 Capital
of Surviving Bank.
At
the
Effective Time, the Surviving Bank shall have authorized capital stock of
2,000,000 shares of common stock, par value $5.00 per share, of which 885,414
shall be issued and outstanding to TIB. The Surviving Bank shall have surplus
and retained earnings equal to the capital accounts of TIB-SUB and BANK
immediately prior to the Effective Time. All such amounts of surplus and
retained earnings shall be adjusted for normal earnings and expenses and for
any
accounting adjustments relating to the Merger provided for herein.
2.7 Addition
to TIB Board of Directors.
At the Effective Time, Xxxxx X. Xxxxx shall become a member of the Board of
Directors of TIB and shall serve until the next election of directors for the
class in which he is so appointed, and until his successor is duly elected
and
qualified. To the extent that Xx. Xxxxx is appointed to a class that expires
at
the TIB Annual Meeting of Shareholders to be held in 2007, then TIB shall
re-nominate Xx. Xxxxx as a director of TIB thereafter for a term of at least
one
year following the 2007 Annual Meeting of TIB shareholders. At the Effective
Time, Xxxxxx X. Xxxx shall become a member of the Board of Directors of BANK,
and he shall serve until the next election of directors and until his successor
is duly elected and qualified.
ARTICLE
3
CONVERSION
OF CONSTITUENTS’ CAPITAL SHARES
3.1 Manner
of Converting Shares.
Subject
to the provisions of this Article 3, at the Effective Time, by virtue of the
Merger and without any further action on the part of TIB, TIB-SUB, BANK or
the
holders of any shares thereof, the shares of the constituent corporations shall
be converted as follows:
(a) Each
share of TIB Common Stock issued and outstanding immediately prior to the
Effective Time shall remain issued and outstanding from and after the Effective
Time. The shares of TIB-SUB common stock outstanding at the Effective Time
shall
be converted into and exchanged for an aggregate of 885,414 shares of the
Surviving Bank’s common stock, par value $5.00 per share, issued and outstanding
to TIB.
(b) Each
share of BANK Common Stock (excluding shares held by any BANK Company, other
than in a fiduciary capacity or as a result of debts previously contracted,
and
excluding shares held by stockholders who perfect their dissenters’ rights of
appraisal as provided in Section 3.4 of this Agreement) issued and outstanding
at the Effective Time shall cease to be outstanding and shall be converted
into
and exchanged for the right to receive (i) that number of shares of TIB Common
Stock determined by dividing $18.00 by the Average Quoted Price and rounding
to
the fourth decimal place (as such may be adjusted pursuant to Section 3.2 of
this Agreement, the “Exchange Ratio”); provided that, subject to the election
rights set forth in Section 3.1(c) below, each holder of BANK Common Stock
shall
have an opportunity to elect to receive cash consideration for up to 10% of
such
holder’s shares of BANK Common Stock in lieu of receiving TIB Common Stock for
such shares, plus (ii) the Net Income Per Share Amount. Notwithstanding the
foregoing, if the Average Quoted Price is equal to or less than $16.50, then
the
Exchange Ratio shall become fixed at 1.0909 shares of TIB Common Stock for
each
share of BANK Common Stock, and if the Average Quoted Price is equal to or
greater than $18.50, then the Exchange Ratio shall become fixed at 0.9730 shares
of TIB Common Stock for each share of BANK Common Stock. If the Average Quoted
Price shall be greater than $20.00, then TIB may, and if the Average Quoted
Price shall be less than $15.00, then BANK may, at any time during the period
commencing on the Determination Date and ending at the close of business five
(5) business days thereafter, terminate this Agreement pursuant to Section
10.1(l) hereof.
(c) (1) Notwithstanding
the provisions of Section 3.1(b) above, each holder of BANK Common Stock shall
be provided with an opportunity to elect to receive for the shares of BANK
Common Stock owned by such holder (i) cash of $18.00 (as such may be adjusted
pursuant to Section 3.2 of this Agreement) for up to 10% of the shares of BANK
Common Stock owned by such holder, plus (ii) for the remaining shares of BANK
Common Stock owned by such holder, an amount of shares of TIB Common Stock
determined in accordance with Section 3.1(b) above, plus (iii) the Net Income
Per Share Amount for the shares of BANK Common Stock owned by such holder.
(2) The
Exchange Agent shall mail an election form in such form as TIB and BANK shall
mutually agree (the “Election Form”) with or following the issuance of the Proxy
Statement/Prospectus and at least 20 days prior to the date of the BANK
Stockholders’ Meeting or on such other date as TIB and BANK shall mutually agree
(the “Mailing Date”) to each holder of record of BANK Common Stock for such BANK
Stockholders’ Meeting. Each Election Form shall permit a holder (or the
beneficial owner through appropriate and customary documentation and
instructions) of BANK Common Stock to elect to receive (i) shares of TIB Common
Stock for all shares of BANK Common Stock owned by such holder, plus the Net
Income Per Share Amount or (ii) a cash payment of $18.00 (as such amount may
be
adjusted pursuant to Section 3.2 of this Agreement) for up to 10% of the shares
of BANK Common Stock owned by such holder, plus shares of TIB Common Stock
for
the remaining shares of BANK Common Stock owned by such holder, plus the Net
Income Per Share Amount.
(3) Any
shares of BANK Common Stock with respect to which the holder shall not have
submitted to the Exchange Agent an effective, properly completed Election Form
prior to 5:00 p.m. Eastern Time on the day before the BANK Stockholders’ Meeting
(or such other time and date as TIB and BANK may mutually agree) (the “Election
Deadline”) shall be converted into TIB Common Stock at the Effective Time, as
set forth in Section 3.1(b) of this Agreement (such shares being referred
to as “No Election Shares”).
(4) Any
Election Form may be revoked or changed by the person submitting such Election
Form at or prior to the Election Deadline. In the event an Election Form is
revoked and a replacement Election Form is not submitted prior to the Election
Deadline, the shares of BANK Common Stock represented by such Election Form
shall become No Election Shares. Subject to the terms of this Agreement and
of
the Election Form, the Exchange Agent shall have reasonable discretion to
determine whether any election, revocation or change has been properly or timely
made and to disregard immaterial defects in the Election Forms, and any good
faith decisions of the Exchange Agent regarding such matters shall be binding
and conclusive. Neither TIB nor the Exchange Agent shall be under any obligation
to notify any person of any defect in an Election Form.
(d) At
the
Effective Time, all outstanding and unexercised options to purchase shares
of
BANK Common Stock pursuant to the BANK Stock Option Plans (each, a “BANK
Option”) will cease to represent an option to purchase BANK Common Stock and
will be converted automatically into options to purchase TIB Common Stock,
and
TIB will assume each BANK Option subject to its terms, including any
acceleration in vesting that will occur as a consequence of the Merger according
to the instruments governing the BANK Option; provided,
however,
that
after the Effective Time:
(i) the
number of shares of TIB Common Stock purchasable upon exercise of each BANK
Option will equal the product of (A) the number of shares of BANK Common
Stock that were purchasable under the BANK Option immediately before the
Effective Time and (B) the Exchange Ratio, rounded to the nearest whole
share; and
(ii) the
per
share exercise price for each BANK Option will equal the quotient of
(A) the per share exercise price of the BANK Option in effect immediately
before the Effective Time divided by (B) the Exchange Ratio, rounded to the
nearest cent.
Notwithstanding
the foregoing, each BANK Option that is intended to be an “incentive stock
option” (as defined in Section 422 of the IRC) will be adjusted in accordance
with the requirements of Section 424 of the IRC. As of the date hereof, the
BANK
Options provide for the purchase of no more than an aggregate of _______
additional shares of BANK Common Stock. As soon as practicable after the
Effective Time, TIB shall file a Registration Statement on Form S-8 (or any
successor or other appropriate forms), with respect to the shares of TIB Common
Stock subject to converted or substitute BANK Options and shall use its
reasonable efforts to maintain the effectiveness of such registration statement
(and maintain the current status of the prospectus or prospectuses associated
therewith) for so long as such converted or substitute BANK Options remain
outstanding.
3.2 Anti-Dilution
Provisions.
In
the
event BANK changes the number of shares of BANK Common Stock issued and
outstanding prior to the Effective Time as a result of a stock split, stock
dividend, recapitalization or otherwise with respect to such stock and the
record date thereof shall be prior to the Effective Time, the Exchange Ratio
and
the Per Share Cash Consideration shall be proportionately adjusted as needed
to
preserve the relative economic benefit to the Parties. In the event TIB changes
the number of shares of TIB 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 thereof shall
be
prior to the Effective Time, the Exchange Ratio and the Per Share Cash
Consideration shall be proportionately adjusted as needed to preserve the
relative economic benefit to the Parties.
3.3 Shares
Held by BANK.
Each
of
the shares of BANK Common Stock held by any BANK Company, 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
Stockholders.
Notwithstanding
Section 3.1 of this Agreement, shares of BANK Common Stock issued and
outstanding at the Effective Time which are held by a holder who perfected
his
dissenters’ rights in accordance with Section 658.44 of the FFIC (“Dissenting
BANK Shares”) shall not be converted into or represent the right to receive the
consideration payable thereon pursuant to Section 3.1 of this Agreement, and
any
such holder shall be entitled only to such rights of appraisal as are granted
by
Section 658.44 of the FFIC (“Dissenter Provisions”), unless and until such
holder fails to perfect or effectively withdraws or otherwise loses his or
her
right to appraisal; provided,
however,
that no
payment in connection with Dissenting BANK Shares shall be made to any
dissenting stockholder unless and until such dissenting stockholder has complied
with the applicable provisions of the Dissenter Provisions and surrendered
to
the Surviving Bank the certificate or certificates representing the Dissenting
BANK Shares for which payment is being made; provided, further, that nothing
contained in this Section 3.4 shall in any way limit the right of TIB to
terminate this Agreement and abandon the Merger under Section 10.1(i). If after
the Effective Time any such dissenting stockholder fails to perfect or
effectively withdraws or loses his right to appraisal, such shares of BANK
Common Stock shall be treated as if they had been converted at the Effective
Time into the right to receive the consideration payable thereon pursuant to
Section 3.1 of this Agreement (without interest). BANK shall give TIB prompt
notice upon receipt by BANK of any written objection to the Merger and such
written demands for payment for shares of BANK Common Stock under the Dissenter
Provisions, and the withdrawals of such demands, and any other instruments
provided to BANK pursuant to the Dissenter Provisions (any stockholder duly
making such demand being hereinafter called a “Dissenting Stockholder”). Each
Dissenting Stockholder that becomes entitled, pursuant to the Dissenter
Provisions, to payment for any shares of BANK Common Stock held by such
Dissenting Stockholder shall receive payment therefor from TIB (but only after
the amount thereof shall have been agreed upon or at the times and in the
amounts required by the Dissenter Provisions). BANK shall not, except with
the
prior written consent of TIB, voluntarily make any payment with respect to,
or
settle or offer to settle, any demand for payment by a Dissenting
Stockholder.
3.5 Fractional
Shares.
No
certificates or scrip representing fractional shares of TIB Common Stock shall
be issued upon the surrender of certificates for exchange; no dividend or
distribution with respect to TIB Common Stock shall be payable on or with
respect to any fractional share; and such fractional share interests shall
not
entitle the owner thereof to vote or to any other rights of a stockholder of
TIB. In lieu of any such fractional share, TIB shall pay to each former
stockholder of BANK who otherwise would be entitled to receive a fractional
share of TIB Common Stock an amount in cash (without interest) determined by
multiplying (a) the Average Quoted Price by (b) the fraction of a
share of TIB Common Stock to which such holder would otherwise be
entitled.
ARTICLE
4
EXCHANGE
OF SHARES
4.1 Exchange
Procedures.
Promptly
after the Effective Time, TIB shall cause the Exchange Agent to mail to the
former stockholders of BANK appropriate transmittal materials (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing shares of BANK Common Stock shall pass,
only upon proper delivery of such certificates to the Exchange Agent). After
completion of the allocation procedure set forth in Section 3.1(c)(5) and upon
surrender of a certificate or certificates for exchange and cancellation to
the
Exchange Agent (such shares to be free and clear of all liens, claims and
encumbrances), together with a properly executed letter of transmittal, the
holder of such certificate or certificates shall be entitled to receive in
exchange therefore: (a) a certificate representing that number of whole
shares of TIB Common Stock which such holder of BANK Common Stock became
entitled to receive pursuant to the provisions of Article 3 hereof and
(b) a check representing the aggregate cash consideration, if any, which
such holder has the right to receive pursuant to the provisions of
Article 3 hereof, and the certificate or certificates so surrendered shall
forthwith be cancelled. No interest will be paid or accrued on the Per Share
Cash Consideration, any cash in lieu of fractional shares, any Additional
Optional Cash consideration or any unpaid dividends and distributions, if any,
payable to holders of certificates for BANK Common Stock. TIB shall not be
obligated to deliver the consideration to which any former holder of BANK Common
Stock is entitled as a result of the Merger until such holder surrenders his
certificate or certificates representing the shares of BANK Common Stock for
exchange as provided in this Section 4.1. The certificate or certificates for
BANK Common Stock so surrendered shall be duly endorsed as the Exchange Agent
may require. Any other provision of this Agreement notwithstanding, neither
the
Surviving Bank, TIB nor the Exchange Agent shall be liable to a holder of BANK
Common Stock for any amounts paid or property delivered in good faith to a
public official pursuant to any applicable abandoned property Law.
4.2 Rights
of Former BANK Stockholders.
At
the
Effective Time, the stock transfer books of BANK shall be closed as to holders
of BANK Common Stock immediately prior to the Effective Time, and no transfer
of
BANK 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
or Section 3.4 of this Agreement, each certificate theretofore representing
shares of BANK Common Stock (“BANK Certificate”), other than shares to be
canceled pursuant to Section 3.3 of this Agreement, shall from and after
the Effective Time represent for all purposes only the right to receive the
consideration provided in Section 3.1 or Section 3.4 of this Agreement, as
the case may be, in exchange therefor. To the extent permitted by Law, former
stockholders of record of BANK Common Stock shall be entitled to vote after
the
Effective Time at any meeting of TIB stockholders the number of whole shares
of
TIB Common Stock into which their respective shares of BANK Common Stock
(excluding Cash Election Shares) are converted, regardless of whether such
holders have exchanged their BANK Certificates for certificates representing
TIB
Common Stock in accordance with the provisions of this Agreement. Whenever
a
dividend or other distribution is declared by TIB on the TIB 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 issuable pursuant to
this
Agreement. Notwithstanding the preceding sentence, any person holding any BANK
Certificate shall not be entitled to receive any dividend or other distribution
payable to holders of TIB Common Stock, which dividend or other distribution
is
attributable to such person’s TIB Common Stock represented by said BANK
Certificate, until such person surrenders said BANK Certificate for exchange
as
provided in Section 4.1 of this Agreement. However, upon surrender of such
BANK
Certificate, both theTIB Common Stock certificate (together with all such
undelivered dividends or other distributions, without interest) and any
undelivered cash payments (without interest) shall be delivered and paid with
respect to each share represented by such BANK Certificate. No holder of shares
of BANK Common Stock shall be entitled to receive any dividends or distributions
declared or made with respect to the TIB Common Stock with a record date before
the Effective Time of the Merger.
4.3 Identity
of Recipient of TIB Common Stock.
In
the
event that the delivery of the consideration provided for in this Agreement
is
to be made to a person other than the person in whose name any certificate
representing shares of BANK Common Stock surrendered is registered, such
certificate so surrendered shall be properly endorsed (or accompanied by an
appropriate instrument of transfer), with the signature(s) appropriately
guaranteed, and otherwise in proper form for transfer, and the person requesting
such delivery shall pay any transfer or other taxes required by reason of the
delivery to a person other than the registered holder of such certificate
surrendered or establish to the satisfaction of TIB that such tax has been
paid
or is not applicable.
4.4 Lost
or Stolen Certificates.
If
any
holder of BANK Common Stock convertible into the right to receive shares of
TIB
Common Stock is unable to deliver the BANK Certificate that represents BANK
Common Stock, the Exchange Agent, in the absence of actual notice that any
such
shares have been acquired by a bona fide purchaser, shall deliver to such holder
the shares of TIB Common Stock to which the holder is entitled for such shares
upon presentation of the following: (a) evidence to the reasonable
satisfaction of TIB that any such BANK Certificate has been lost, wrongfully
taken or destroyed; (b) such security or indemnity as may be reasonably
requested by TIB to indemnify and hold TIB and the Exchange Agent harmless;
and
(c) evidence satisfactory to TIB that such person is the owner of the
shares theretofore represented by each BANK Certificate claimed by the holder
to
be lost, wrongfully taken or destroyed and that the holder is the person who
would be entitled to present such BANK Certificate for exchange pursuant to
this
Agreement.
4.5 Laws
of Escheat.
If
any of
the consideration due or other payments to be paid or delivered to the holders
of BANK Common Stock is not paid or delivered within the time period specified
by any applicable laws concerning abandoned property, escheat or similar laws,
and if such failure to pay or deliver such consideration occurs or arises out
of
the fact that such property is not claimed by the proper owner thereof, TIB
or
the Exchange Agent shall be entitled (but not required) to dispose of any such
consideration or other payments in accordance with applicable laws concerning
abandoned property, escheat or similar Laws. Any other provision of this
Agreement notwithstanding, none of TIB, TIB-SUB, BANK, the Exchange Agent nor
any other person acting on their behalf shall be liable to a holder of BANK
Common Stock for any amount paid or property delivered in good faith to a public
official pursuant to and in accordance with any applicable abandoned property,
escheat or similar Law.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF BANK
BANK
hereby represents and warrants to TIB as follows:
5.1 Corporate
Organization, Standing and Power.
BANK
is a
state banking 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 and to incur its Liabilities. BANK 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 Material Adverse Effect on BANK. BANK has delivered to TIB complete
and correct copies of its Articles of Incorporation and Bylaws and the articles
of incorporation, bylaws and other, similar governing instruments of each of
its
Subsidiaries, in each case as amended through the date hereof.
5.2 Authority;
No Breach By Agreement.
(a) BANK
has
the corporate power and authority necessary to execute, deliver and perform
its
obligations under this Agreement and to consummate the transactions provided
for
herein. The execution, delivery and performance of this Agreement and the
consummation of the transactions provided for herein, including the Merger,
have
been duly and validly authorized by all necessary corporate action on the part
of BANK, subject to the approval of this Agreement by the holders of a majority
of the outstanding shares of BANK Common Stock. Subject to such requisite
stockholder approval and required regulatory consents, this Agreement represents
a legal, valid and binding obligation of BANK, enforceable against BANK in
accordance with its terms.
(b) Except
as
set forth on Schedule
5.2(b),
neither
the execution and delivery of this Agreement by BANK, nor the consummation
by
BANK of the transactions provided for herein, nor compliance by BANK with any
of
the provisions hereof, will (i) conflict with or result in a breach of any
provision of BANK’s Articles of Incorporation or Bylaws or the Articles or
Certificates of Incorporation or Bylaws of any BANK Company, 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 BANK
Company under, any Contract or Permit of any BANK Company, where failure to
obtain such Consent is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on such BANK Company, or,
(iii) subject to receipt of the requisite Consents and approvals of
Regulatory Authorities referred to in this Agreement, violate or conflict with
any Law or Order applicable to any BANK Company or any of their respective
Assets.
(c) Except
as
set forth on Schedule
5.2(c),
other
than (i) in connection or compliance with the provisions of the Securities
Laws,
applicable state corporate and securities Laws, (ii) Consents required from
Regulatory Authorities, (iii) the approval by the stockholders of BANK of the
Merger and the transactions provided for in this Agreement, (iv) notices to
or
filings with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, and (v) 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
the BANK Company at issue, no notice to, filing with or Consent of, any Person
or public body or authority is necessary for the consummation by BANK of the
Merger and the other transactions provided for in this Agreement.
5.3 Capital
Stock.
(a) The
authorized capital stock of BANK consists of 2,000,000 shares of BANK Common
Stock, of which 885,414 shares are issued and outstanding (none of which is
held
in the treasury of BANK). All of the issued and outstanding shares of BANK
Common Stock are duly and validly issued and outstanding and are fully paid
and
non-assessable. None of the shares of capital stock, options, or other
securities of BANK has been issued in violation of the Securities Laws or any
preemptive rights of the current or past stockholders of BANK. Pursuant to
the
terms of the BANK Stock Option Plans, there are currently outstanding options
with the right to purchase a total of 81,882 shares of BANK Common Stock, as
more fully set forth in Schedule 5.3
attached
hereto.
(b) Except
as
set forth in Section 5.3(a) of this Agreement, there are no shares of capital
stock or other equity securities of BANK outstanding and no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of BANK or contracts, commitments,
understandings or arrangements by which BANK is or may be bound to issue
additional shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. BANK has no
liability for dividends declared or accrued, but unpaid, with respect to any
of
its capital stock.
5.4 BANK
Subsidiaries.
(a) Each
of
the BANK Subsidiaries has the corporate power and authority necessary for it
to
own, lease and operate its Assets and to incur its Liabilities and to carry
on
its business as now conducted. Each BANK 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 jurisdictions in which the failure to be so qualified
or
licensed is not reasonably likely to have, individually or in the aggregate,
a
Material Adverse Effect on BANK on a consolidated basis.
(b) The
authorized and issued and outstanding capital stock of each BANK Subsidiary
is
set forth on Schedule 5.4(b).
BANK
owns all of the issued and outstanding shares of capital stock of each BANK
Subsidiary. None of the shares of capital stock or other securities of any
BANK
Subsidiary has been issued in violation of the Securities Laws or any preemptive
rights. No equity securities of any BANK Subsidiary are or may become required
to be issued by reason of any options, warrants, scrip, rights to subscribe
to,
calls or commitments of any character whatsoever relating to, or securities
or
rights convertible into or exchangeable for, shares of the capital stock of
any
such Subsidiary, and there are no Contracts by which any BANK Subsidiary is
bound to issue additional shares of its capital stock or options, warrants
or
rights to purchase or acquire any additional shares of its capital stock or
by
which any BANK Company is or may be bound to transfer any shares of the capital
stock of any BANK Subsidiary. There are no Contracts relating to the rights
of
any BANK Company to vote or to dispose of any shares of the capital stock of
any
BANK Subsidiary. All of the shares of capital stock of each BANK Subsidiary
are
fully paid and non-assessable under the applicable corporation Law of the
jurisdiction in which such Subsidiary is incorporated and organized and are
owned by BANK free and clear of any Lien. No BANK Subsidiary has any liability
for dividends declared or accrued, but unpaid, with respect to any of its
capital stock. For purposes of this Section 5.4(b), references to “capital
stock” shall be deemed to include membership interests with respect to any BANK
Company that is a limited liability company.
(c) The
minute books of BANK and each BANK Subsidiary contain complete and accurate
records in all material respects of all meetings and other corporate actions
held or taken by their respective stockholders and Boards of Directors
(including all committees thereof), since such entity’s formation.
5.5 Financial
Statements.
The
BANK
has previously furnished to TIB copies of all BANK Financial Statements and
BANK
Call Reports for periods ended prior to the date hereof, and BANK will deliver
to TIB promptly copies of all BANK Financial Statements and BANK Call Reports
prepared subsequent to the date hereof. The BANK Financial Statements (as of
the
dates thereof and for the periods covered thereby) (a) are or, if dated
after the date of this Agreement, will be in accordance with the books and
records of the BANK Companies, which are or will be, as the case may be,
complete and correct and which have been or will have been, as the case may
be,
maintained in accordance with good business practices and in accordance with
applicable legal and accounting principles and reflect only actual transactions,
and (b) present or will present, as the case may be, fairly the
consolidated financial position of the BANK Companies as of the dates indicated
and the consolidated results of operations, changes in stockholders’ equity and
cash flows of the BANK Companies for the periods indicated, in accordance with
GAAP (subject to exceptions as to consistency specified therein or as may be
indicated in the notes thereto or, in the case of interim financial statements,
to normal recurring year-end audit adjustments that are not material). The
BANK
Call Reports have been prepared in material compliance with (i) the rules and
regulations of the respective federal or state banking regulator with which
they
were filed, and (ii) regulatory accounting principles, which principles have
been consistently applied during the periods involved, except as otherwise
noted
therein.
5.6 Absence
of Undisclosed Liabilities.
No
BANK
Company has any Liabilities that have or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on BANK, except
Liabilities accrued or reserved against in the consolidated balance sheets
of
BANK as of December 31, 2005, included in the BANK Financial Statements or
reflected in the notes thereto, except as set forth on Schedule
5.6.
No BANK
Company has incurred or paid any Liability since December 31, 2005, except
for
such Liabilities incurred or paid 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 Material Adverse Effect on
BANK.
5.7 Absence
of Certain Changes or Events.
Except
as
set forth on Schedule 5.7,
since
December 31, 2005: (i) there have been no events, changes or occurrences
that have had, or are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BANK or its Subsidiaries, including
without limitation any change in the administrative or supervisory standing
or
rating of BANK with any Regulatory Authority, (ii) the BANK Companies 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 BANK provided in Article 7 of this Agreement, and
(iii) to BANK’s Knowledge, no fact or condition exists which BANK believes
will cause a Material Adverse Effect on BANK or its Subsidiaries in the future,
subject to changes in general economic or industry conditions.
5.8 Tax
Matters.
(a) All
Tax
returns required to be filed by or on behalf of any of the BANK Companies have
been timely filed or requests for extensions have been timely filed, granted
and
have not expired, and all returns filed are complete and accurate in all
material respects. All Taxes shown as due on filed returns have been paid.
There
is no audit examination, deficiency, refund Litigation or matter in controversy
pending, or to the Knowledge of BANK, threatened, with respect to any Taxes
that
might result in a determination that would have, individually or in the
aggregate, a Material Adverse Effect on BANK, except as reserved against in
the
BANK Financial Statements delivered prior to the date of this Agreement. All
Taxes and other Liabilities due with respect to completed and settled
examinations or concluded Litigation have been fully paid.
(b) None
of
the BANK Companies 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) Adequate
provision for any Taxes due or to become due for any of the BANK Companies
for
the period or periods through and including the date of the respective BANK
Financial Statements has been made and is reflected on such BANK Financial
Statements.
(d) Any
and
all deferred Taxes of the BANK Companies have been provided for in accordance
with GAAP.
(e) None
of
the BANK Companies is responsible for the Taxes of any other Person other than
the BANK Companies under Treasury Regulation 1.1502-6 or any similar provision
of federal or state Law.
(f) Except
as
set forth on Schedule
5.8(f),
none of
the BANK Companies has made any payment, is obligated to make any payment or
is
a party to any Contract that could obligate it to make any payment that would
be
disallowed as a deduction under Section 280G or 162(m) of the IRC.
(g) There
has
not been an ownership change, as defined in Section 382(g) of the IRC, that
occurred during or after any taxable period in which BANK or any BANK
Subsidiaries incurred an operating loss that carries over to any taxable period
ending after the fiscal year of BANK immediately preceding the date of this
Agreement.
(h) (i)
Proper and accurate amounts have been withheld by the BANK Companies from their
employees and others for all prior periods in compliance in all material
respects with the tax withholding provisions of all applicable federal, state
and local Laws, and proper due diligence steps have been taken in connection
with back-up withholding, (ii) federal, state and local returns have been filed
by the BANK Companies for all periods for which returns were due with respect
to
withholding, Social Security and unemployment taxes or charges due to any
federal, state or local taxing authority and (iii) the amounts shown on such
returns to be due and payable have been paid in full or adequate provision
therefore have been included by BANK in the BANK Financial
Statements.
(i) BANK
has
delivered or made available to TIB correct and complete copies of all Tax
returns filed by BANK and each BANK Subsidiary for each fiscal year ended on
and
after December 31, 2002.
(j) BANK
has
in effect an election to be treated as an “S corporation” within the meaning of
Section 1361 of the IRC.
5.9 Loan
Portfolio; Documentation and Reports.
(a) Except
as
disclosed in Schedule 5.9(a),
none of
the BANK Companies is a creditor as to any written or oral loan agreement,
note
or borrowing arrangement, including without limitation leases, credit
enhancements, commitments and interest-bearing assets (excluding investment
securities) (the “Loans”), other than Loans the unpaid principal balance of
which does not exceed $25,000 per Loan or $50,000 in the aggregate, under the
terms of which the obligor is, as of the date of this Agreement, over 90 days
delinquent in payment of principal or interest or in default of any other
material provisions. Except as otherwise set forth in Schedule 5.9(a),
none of
the BANK Companies is a creditor as to any Loan, including without limitation
any loan guaranty, to any director, executive officer or 5% stockholder thereof,
or to the Knowledge of BANK, any Person controlling, controlled by or under
common control with any of the foregoing. All of the Loans held by any of the
BANK Companies are in all respects the binding obligations of the respective
obligors named therein in accordance with their respective terms, are not
subject to any defenses, setoffs or counterclaims, except as may be provided
by
bankruptcy, insolvency or similar Laws or by general principles of equity,
and
were solicited, originated and exist in material compliance with all applicable
Laws and BANK loan policies, except for deviations from such policies that
(a) have been approved by current management of BANK, in the case of Loans
with an outstanding principal balance that exceeds $25,000, or (b) in the
judgment of BANK, will not adversely affect the ultimate collectibility of
such
Loan. Except as set forth in Schedule 5.9(a),
none of
the BANK Companies holds any Loans in the original principal amount in excess
of
$25,000 per Loan or $50,000 in the aggregate that have been classified by any
bank examiner, whether regulatory or internal, as “other loans Specifically
Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,”
“Watch List,” “Criticized,” “Credit Risk Assets,” “concerned loans” or words of
similar import. The allowance for possible loan or credit losses (the “BANK
Allowance”) shown on the consolidated balance sheets of BANK included in the
most recent BANK Financial Statements dated prior to the date of this Agreement
was, and the BANK Allowance shown on the consolidated balance sheets of BANK
included in the BANK 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 losses relating to or inherent in the loan and lease portfolios
(including accrued interest receivables) of the BANK Companies and other
extensions of credit (including letters of credit and commitments to make loans
or extend credit) by the BANK Companies as of the dates thereof. The reserve
for
losses with respect to other real estate owned (“OREO Reserve”) shown on the
most recent Financial Statements and BANK Call Reports were, and the OREO
Reserve to be shown on the Financial Statements and BANK Call Reports as of
any
date subsequent to the execution of this Agreement will be, as of such dates,
adequate to provide for losses relating to the other real estate owned portfolio
of BANK as of the dates thereof. The reserve for losses in respect of litigation
(“Litigation Reserve”) shown on the most recent Financial Statements and BANK
Call Reports and the Litigation Reserve to be shown on the Financial Statements
and BANK Call Reports as of any date subsequent to the execution of this
Agreement will be, as of such dates, adequate to provide for losses relating
to
or arising out of all pending or threatened litigation applicable to BANK and
the BANK Subsidiaries as of the dates thereof. Each such reserve described
above
has been established in accordance with applicable accounting principles and
regulatory requirements and guidelines.
(b) The
documentation relating to each Loan made by any BANK Company and to all security
interests, mortgages and other liens with respect to all collateral for loans
is
adequate for the enforcement of the material terms of such Loan, security
interest, mortgage or other lien, except for inadequacies in such documentation
which will not, individually or in the aggregate, have a Material Adverse Effect
on BANK.
5.10 Assets;
Insurance.
Except
as
set forth on Schedule
5.10,
the
BANK Companies have marketable title, free and clear of all Liens, to all of
their respective Assets. One of the BANK Companies has good and marketable
fee
simple title to the real property described in Schedule 5.10(a)
and has
an enforceable leasehold interest in the real property described in Schedule 5.10(b),
if any,
free and clear of all Liens. All tangible real and personal properties and
Assets used in the businesses of the BANK Companies are in good condition,
reasonable wear and tear excepted, and are usable in the ordinary course of
business consistent with BANK’s past practices. All Assets that are material to
BANK’s business on a consolidated basis, held under leases or subleases by any
of the BANK Companies 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 and there
is
not under any such Contract any Default or claim of Default by BANK or, to
the
Knowledge of BANK, by any other party to the Contract. Schedules
5.10(a)
and
5.10(b)
identify
each parcel of real estate or interest therein owned, leased or subleased by
any
of the BANK Companies or in which any BANK Company has any ownership or
leasehold interest. If applicable, Schedule
5.10(b)
also
lists or otherwise describes each and every written or oral lease or sublease
under which any BANK Company is the lessee of any real property and which
relates in any manner to the operation of the businesses of any BANK Company.
None of the BANK Companies has violated, or is currently in violation of, any
Law, regulation or ordinance relating to the ownership or use of the real estate
and real estate interests described in Schedules
5.10(a)
and
5.10(b),
including without limitation any Law relating to zoning, building, occupancy,
environmental or comparable matter which individually or in the aggregate would
have a Material Adverse Effect on BANK. As to each parcel of real property
owned
or used by any BANK Company, no BANK Company has received notice of any pending
or, to the Knowledge of each of the BANK Companies, threatened condemnation
proceedings, litigation proceedings or mechanic’s or materialmens’ liens. The
Assets of the BANK Companies include all assets required to operate the business
of the BANK
Companies as
now
conducted. The policies of fire, theft, liability, D&O and other insurance
maintained with respect to the Assets or businesses of the BANK Companies
provide adequate coverage under current industry practices against loss or
Liability, and the fidelity and blanket bonds in effect as to which any of
the
BANK Companies is a named insured are reasonably sufficient. Schedule
5.10(c)
contains
a list of all such policies and bonds maintained by any of the BANK Companies,
and BANK has provided true and correct copies of each such policy to
TIB.
5.11 Environmental
Matters.
(a) To
the
Knowledge of Bank, each BANK Company, its Participation Facilities and its
Loan
Properties are, and have been, in compliance with all Environmental Laws, except
for violations that are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BANK.
(b) There
is
no Litigation pending or, to the Knowledge of BANK, threatened before any court,
governmental agency or authority or other forum in which any BANK Company or
any
of its Participation Facilities 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 into the environment of any Hazardous Material or oil, whether
or
not occurring at, on, under or involving a site owned, leased or operated by
any
BANK Company or any of its Participation Facilities, except for such Litigation
pending or threatened that is not reasonably likely to have, individually or
in
the aggregate, a Material Adverse Effect on BANK.
(c) There
is
no Litigation pending or, to the Knowledge of BANK, threatened before any court,
governmental agency or board or other forum in which any of its Loan Properties
(or BANK with respect to such Loan Property) has been or, with respect to
threatened Litigation, may be named as a defendant or potentially responsible
party (i) for alleged noncompliance (including by any predecessor) with any
Environmental Law or (ii) relating to the release into the environment of
any Hazardous Material or oil, whether or not occurring at, on, under or
involving a Loan Property, except for such Litigation pending or threatened
that
is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on BANK.
(d) To
the
Knowledge of BANK, there is no reasonable basis for any Litigation of a type
described in subsections 5.11(b) or 5.11(c), except such as is not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect
on
BANK.
(e) During
the period of (i) any BANK Company’s ownership or operation of any of its
respective current properties, (ii) any BANK Company’s participation in the
management of any Participation Facility or (iii) any BANK Company’s
holding of a security interest in a Loan Property, there have been no releases
of Hazardous Material or oil in, on, under or affecting such properties, except
such as are not reasonably likely to have, individually or in the aggregate,
a
Material Adverse Effect on BANK. Prior to the period of (i) any BANK
Company’s ownership or operation of any of its respective current properties,
(ii) any BANK Company’s participation in the management of any
Participation Facility, or (iii) any BANK Company’s holding of a security
interest in a Loan Property, to the Knowledge of BANK, there were no releases
of
Hazardous Material or oil in, on, under or affecting any such property,
Participation Facility or Loan Property, except such as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect
on
BANK.
5.12 Compliance
with Laws.
Each
BANK
Company has in effect all Permits necessary for it to own, lease or operate
its
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 Material Adverse Effect on BANK, and there has occurred no Default
under any such Permit. None of the BANK Companies:
(a) is
in
material violation of any Laws, Orders or Permits applicable to its business
or
employees, agents or representatives conducting its business; or
(b) 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 BANK Company is not, or suggesting that any
BANK Company may not be, in compliance with any of the Laws or Orders that
such
governmental authority or Regulatory Authority enforces, (ii) threatening
to revoke any Permits, (iii) requiring any BANK Company, or suggesting that
any BANK Company may be required, 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, or
(iv)
directing, restricting or limiting, or purporting to direct, restrict or limit
in any manner the operations of any BANK Company, including without limitation
any restrictions on the payment of dividends, or that in any manner relates
to
such entity’s capital adequacy, credit or reserve policies or management or
business.
5.13 Labor
Relations; Executive Officers.
(a) No
BANK
Company is the subject of any Litigation asserting that it or any other BANK
Company 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 BANK Company to bargain with any labor organization as to wages or
conditions of employment, nor is there any strike or other labor dispute
involving any BANK Company, pending or threatened, nor to its Knowledge, is
there any activity involving any BANK Company’s employees seeking to certify a
collective bargaining unit or engaging in any other organization activity.
Each
BANK Company is and has been in compliance with all Employment Laws, except
for
violations that are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BANK.
(b) Schedule
5.13(b)
contains
a true and complete list showing the names and current annual salaries of all
current executive officers of each of the BANK Companies and lists for each
such
person the amounts paid, payable or expected to be paid as salary, bonus
payments and other compensation for 2004, 2005 and 2006. Schedule
5.13(b)
also
sets forth the name and offices held by each officer and director of each of
the
BANK Companies.
5.14 Employee
Benefit Plans.
(a) Schedule
5.14(a)
lists,
and BANK has delivered or made available to TIB prior to the execution of this
Agreement copies of, all pension, retirement, profit-sharing, salary
continuation and split dollar agreements, deferred compensation, director
deferred fee agreements, director retirement agreement, stock option, employee
stock ownership, severance pay, vacation, bonus or other incentive plan, all
other written or unwritten 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, without
limitation, “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 BANK Company or 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 “BANK Benefit Plans”). Any of the BANK 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 “BANK ERISA Plan.” Each BANK
ERISA Plan which is also a “defined benefit plan” (as defined in Section 414(j)
of the IRC) is referred to herein as a “BANK Pension Plan”. No BANK Pension Plan
is or has been a multi-employer plan within the meaning of Section 3(37) of
ERISA.
(b) All
BANK
Benefit Plans and the administration thereof are in compliance with the
applicable terms of ERISA, the IRC and any other applicable Laws, the breach
or
violation of which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on BANK. Each BANK ERISA Plan which is
intended to be qualified under Section 401(a) of the IRC has received a
favorable determination letter or opinion letter, as applicable, from the
Internal Revenue Service, and BANK is not aware of any circumstances that could
result in revocation of any such favorable determination letter/opinion letter.
No BANK Company has engaged in a transaction with respect to any BANK Benefit
Plan that, assuming the taxable period of such transaction expired as of the
date hereof, would subject any BANK Company to a tax or penalty imposed by
either Section 4975 of the IRC or Section 502(i) of ERISA in amounts which
are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BANK. There are no actions, suits, arbitrations or claims, including
any investigations or audits by the Internal Revenue Service or any other
governmental authority, pending (other than routine claims for benefits) or
threatened against, any BANK Benefit Plan or any BANK Company with regard to
any
BANK Benefit Plan, any trust which is a part of any BANK Benefit Plan, any
trustee, fiduciary, custodian, administrator or other person or entity holding
or controlling assets of any BANK Benefit Plan, and no basis to anticipate
any
such action, suit, arbitration, claim, investigation or audit
exists.
(c) No
BANK
ERISA Plan which is a defined benefit 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 BANK Pension Plan, (ii) no change in the
actuarial assumptions with respect to any BANK Pension Plan, (iii) no
increase in benefits under any BANK Pension Plan as a result of plan amendments
or changes in applicable Law which is reasonably likely to materially adversely
affect the funding status of any such plan. Neither any BANK Pension Plan nor
any “single-employer plan,” within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any BANK Company, or the single-employer
plan of any entity which is considered one employer with BANK under Section
4001
of ERISA or Section 414 of the IRC 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 IRC or Section 302 of ERISA, which is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BANK. No BANK Company has provided, or is required to provide,
security to a BANK Pension Plan or to any single-employer plan of an ERISA
Affiliate pursuant to Section 401(a)(29) of the IRC.
(d) No
Liability under Subtitle C or D of Title IV of ERISA has been or is expected
to
be incurred by any BANK Company with respect to any ongoing, frozen or
terminated single-employer plan or the single-employer plan of any ERISA
Affiliate. No BANK Company has incurred any withdrawal Liability with respect
to
a multi-employer plan under Subtitle D of Title IV of ERISA (regardless of
whether based on contributions of an ERISA Affiliate), which Liability is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on BANK. 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 BANK Pension Plan or by any ERISA
Affiliate within the 12-month period ending on the date hereof.
(e) No
BANK
Company has any obligations for retiree health and life benefits under any
of
the BANK Benefit Plans, and there are no restrictions on the rights of such
BANK
Company to amend or terminate any such plan without incurring any Liability
thereunder, which Liability is reasonably likely to have a Material Adverse
Effect on BANK.
(f) Except
as
set forth on Schedule
5.14(f),
neither
the execution and delivery of this Agreement nor the consummation of the
transactions provided for herein will (i) result in any payment (including,
without limitation, severance, unemployment compensation, golden parachute
or
otherwise) becoming due to any director or any employee of any BANK Company
from
any BANK Company under any BANK Benefit Plan, employment contract or otherwise,
(ii) increase any benefits otherwise payable under any BANK Benefit Plan,
or (iii) result in any acceleration of the time of payment or vesting of
any such benefit.
(g) With
respect to all BANK Benefit Plans (whether or not subject to ERISA and whether
or not qualified under Section 401(a) of the IRC), all contributions due
(including any contributions to any trust account or payments due under any
insurance policy) previously declared or otherwise required by Law or contract
to have been made and any employer contributions (including any contributions
to
any trust account or payments due under any insurance policy) accrued but unpaid
as of the date hereof will be paid by the time required by Law or contract.
All
contributions made or required to be made under any BANK Benefit Plan have
been
made and such contributions meet the requirements for deductibility under the
IRC, and all contributions which are required and which have not been made
have
been properly recorded on the books of BANK.
5.15 Material
Contracts.
Except
as
set forth on Schedule
5.15,
none of
the BANK Companies, nor any of their respective Assets, businesses or
operations, is a party to, or is bound or affected by, or receives benefits
under any of the following (whether written or oral, express or implied):
(i) any employment, severance, termination, consulting or retirement
Contract with any Person; (ii) any Contract relating to the borrowing of
money by any BANK Company or the guarantee by any BANK Company of any such
obligation (other than Contracts evidencing deposit liabilities, purchases
of
federal funds, fully-secured repurchase agreements, trade payables and Contracts
relating to borrowings or guarantees made and letters of credit); (iii) any
Contract relating to indemnification or defense of any director, officer or
employee of any of the BANK Companies or any other Person; (iv) any
Contract with any labor union; (v) any Contract relating to the disposition
or acquisition of any interest in any business enterprise; (vi) any
Contract relating to the extension of credit to, provision of services for,
sale, lease or license of Assets to, engagement of services from, or purchase,
lease or license of Assets from, any 5% stockholder, director or officer of
any
of the BANK Companies, any member of the immediate family of the foregoing
or,
to the Knowledge of BANK, any related interest (as defined in Regulation O
promulgated by the FRB) (“Related Interest”) of any of the foregoing;
(vii) any Contract (A) which limits the freedom of any of the BANK
Companies to compete in any line of business or with any Person or
(B) which limits the freedom of any other Person to compete in any line of
business with any BANK Company; (viii) any Contract providing a power of
attorney or similar authorization given by any of the BANK Companies, except
as
issued in the ordinary course of business with respect to routine matters;
or
(ix) any Contract (other than deposit agreements and certificates of
deposits issued to customers entered into in the ordinary course of business
and
letters of credit) that involves the payment by any of the BANK Companies of
amounts aggregating $50,000 or more in any twelve-month period (together with
all Contracts referred to in Sections 5.10 and 5.14(a) of this Agreement, the
“BANK Contracts”). BANK has delivered or made available to TIB correct and
complete copies of all BANK Contracts. Each of the BANK Contracts is in full
force and effect, and none of the BANK Companies is in Default under any BANK
Contract. All of the indebtedness of any BANK Company for money borrowed is
prepayable at any time by such BANK Company without penalty or
premium.
5.16 Legal
Proceedings.
Except
as
set forth on Schedule
5.16,
there
is no Litigation instituted or pending, or, to the Knowledge of BANK, threatened
(or unasserted but considered probable of assertion) against any BANK Company,
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, pending or, to the knowledge of BANK, threatened
against any BANK Company.
5.17 Reports.
Since
its
formation, each BANK Company has timely filed all reports, registrations and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with (i) any Regulatory Authorities and
(ii) any applicable state securities or banking authorities and all other
material reports and statements required to be filed by it, and has paid all
fees and assessments due and payable in connection therewith. Except for normal
examinations conducted by Regulatory Authorities in the regular course of the
business of the BANK Companies, to the Knowledge of any BANK Company, no
Regulatory Authority has initiated any proceeding or, to the Knowledge of any
BANK Company, investigation into the business or operations of any BANK Company.
There is no unresolved violation, criticism or exception by any Regulatory
Authority with respect to any report or statement or any examinations of any
BANK Company or any lien in favor of any BANK Company. As of their respective
dates, each of such reports, registrations, statements 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
of
such reports, registrations, statements and documents did not, in any material
respect, 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. Other than the BANK Call Reports, the financial information and
reports contained in each of such reports, registrations, statements and
documents (including the related notes, where applicable), (a) has been
prepared in all material respects in accordance with GAAP, which principles
have
been consistently applied during the periods involved, except as otherwise
noted
therein, (b) fairly presents the financial position of the BANK Companies
as of the respective dates thereof, and (c) fairly presents the results of
operations of the BANK Companies for the respective periods therein set
forth.
5.18 Statements
True and Correct.
Neither
this Agreement nor any statement, certificate, instrument or other writing
furnished or to be furnished by any BANK Company or any Affiliate thereof to
TIB
pursuant to this Agreement, including the Exhibits and Schedules hereto, 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 BANK Company or any Affiliate thereof for inclusion in
the
documents to be prepared by TIB in connection with the transactions provided
for
in this Agreement, including without limitation (i) documents to be filed
with the SEC, including without limitation the Registration Statement on Form
S-4 of TIB registering the shares of TIB Common Stock to be offered to the
holders of BANK Common Stock, and all amendments thereto (as amended, the “S-4
Registration Statement”) and the Proxy Statement and Prospectus in the form
contained in the S-4 Registration Statement, and all amendments and supplements
thereto (as amended and supplemented, the “Proxy Statement/Prospectus”),
(ii) filings pursuant to any state securities and blue sky Laws, and
(iii) filings made in connection with the obtaining of Consents from
Regulatory Authorities, in the case of the S-4 Registration Statement, at the
time the S-4 Registration Statement is declared effective pursuant to the 1933
Act, in the case of the Proxy Statement/Prospectus, at the time of the mailing
thereof and at the time of the meeting of stockholders to which the Proxy
Statement/Prospectus relates, and in the case of any other documents, the time
such documents are filed with a Regulatory Authority and/or at the time they
are
distributed to stockholders of TIB or BANK, contains or will contain any untrue
statement of a material fact or fails to state any 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. All documents
that
any BANK Company is responsible for filing with any Regulatory Authority in
connection with the transactions provided for herein will comply as to form
in
all material respects with the provisions of applicable Law.
5.19 Accounting,
Tax and Regulatory Matters.
No
BANK
Company or any Affiliate thereof has taken any action or has any Knowledge
of
any fact or circumstance that is reasonably likely to (i) prevent the
transactions provided for herein, including the Merger, from qualifying as
a
reorganization within the meaning of Section 368(a) of the IRC, or
(ii) materially impede or delay receipt of any Consents of Regulatory
Authorities referred to in subsection 9.1(b) of this Agreement or result in
the
imposition of a condition or restriction of the type referred to in the last
sentence of such subsection 9.1(b).
5.20 Offices.
The
headquarters of each BANK Company and each other office, branch or facility
maintained and operated by each BANK Company (including without limitation
representative and loan production offices and operations centers) and the
locations thereof are listed on Schedule
5.20.
None of
the BANK Companies maintains any other office or branch or conducts business
at
any other location, or has applied for or received permission to open any
additional office or branch or to operate at any other location.
5.21 Data
Processing Systems.
The
electronic data processing systems and similar systems utilized in processing
the work of each of the BANK Companies, including both hardware and software,
(a) are supplied by a third party provider; (b) satisfactorily perform
the data processing function for which they are presently being used; and
(c) are wholly within the possession and control of one of the BANK
Companies or its third party provider such that physical access to all software,
documentation, passwords, access codes, backups, disks and other data storage
devices and similar items readily can be made accessible to and delivered into
the possession of TIB or TIB’s third party provider.
5.22 Intellectual
Property.
Each
of
the BANK Companies owns or possesses valid and binding licenses and other rights
to use without additional payment all material patents, copyrights, trade
secrets, trade names, service marks, trademarks, computer software and other
intellectual property used in its business; and none of the BANK Companies
has
received any notice of conflict with respect thereto that asserts the rights
of
others. The BANK Companies have in all material respects performed all the
obligations required to be performed by them and are not in default in any
material respect under any contract, agreement, arrangement or commitment
relating to any of the foregoing. Schedule
5.22
lists
all of the trademarks, trade names, licenses and other intellectual property
used to conduct the businesses of the BANK Companies. Each of the BANK Companies
has taken reasonable precautions to safeguard its trade secrets from disclosure
to third-parties.
5.23 Administration
of Trust Accounts.
BANK
does
not possess and does not exercise trust powers.
5.24 Advisory
Fees.
BANK
has
retained the BANK Financial Advisor to serve as its financial advisor and,
as of
the Effective Time, shall incur a liability to the BANK Financial Advisor in
the
amount set forth on Schedule
5.24
(the
“Advisory Fee”) in connection with the Merger. Other than the BANK Financial
Advisor and the Advisory Fee, neither BANK nor any of its Subsidiaries nor
any
of their respective officers or directors has employed any broker or finder
or
incurred any liability for any broker’s fees, commissions or finder’s fees in
connection with any of the transactions provided for in this
Agreement.
5.25 Regulatory
Approvals.
BANK
knows of no reason why all requisite regulatory approvals regarding the Merger
should not or cannot be obtained.
5.26 Opinion
of Counsel.
BANK
has
no Knowledge of any facts that would preclude issuance of the opinion of counsel
referred to in subsection 9.2(d).
5.27 Repurchase
Agreements; Derivatives Contracts.
With
respect to all agreements currently outstanding pursuant to which any BANK
Company has purchased securities subject to an agreement to resell, such BANK
Company has a valid, perfected first lien or security interest in the securities
or other collateral securing such agreement, and the value of such collateral
equals or exceeds the amount of the debt secured thereby. With respect to all
agreements currently outstanding pursuant to which any BANK Company has sold
securities subject to an agreement to repurchase, no BANK Company has pledged
collateral in excess of the amount of the debt secured thereby. No BANK Company
has pledged collateral in excess of the amount required under any interest
rate
swap or other similar agreement currently outstanding. No BANK Company is a
party to, nor has any BANK Company agreed to enter into any exchange-traded
or
over-the-counter swap, forward, future, option, cap, floor, or collar financial
contract or agreement, or any other interest rate or foreign currency protection
contract not included on its balance sheet which is a financial derivative
contract (including various combinations thereof).
5.28 Anti-takeover
Provisions.
Each
BANK
Company has taken all actions required to exempt such BANK Company, this
Agreement, the Merger, the Subsidiary Merger Agreement and the Subsidiary Merger
from any provisions of an anti-takeover nature contained in their organizational
documents or the provisions of any federal or state “anti-takeover,” “fair
price,” “moratorium,” “control share acquisition” or similar Laws or regulations
(“Takeover Laws”) if applicable to any of the BANK Companies immediately prior
to the Effective Time.
5.29 Transactions
with Management.
Except
for (a) deposits, all of which are on terms and conditions comparable in
all material respects to those made available to other nonaffiliated similarly
situated customers of BANK at the time such deposits were entered into,
(b) the loans listed on Schedule
5.9(a),
(c) the agreements designated on Schedule
5.15,
(d) obligations under employee benefit plans of the BANK Companies set
forth in Schedule
5.14(a)
and
(e) any items described on Schedule
5.29,
there
are no contracts with or commitments to present or former stockholders who
own
or owned more than 1% of the BANK Common Stock, directors, officers or employees
(or their Related Interests) involving the expenditure of more than $1,000
as to
any one individual (including any business directly or indirectly controlled
by
any such person), or more than $5,000 for all such contracts for commitments
in
the aggregate for all such individuals.
5.30 Deposits.
Except
as
set forth on Schedule
5.30,
none of
the deposits of BANK are “brokered” deposits or are subject to any encumbrance,
legal restraint or other legal process (other than garnishments, pledges, set
off rights, limitations applicable to public deposits, escrow limitations and
similar actions taken in the ordinary course of business), and no portion of
deposits of BANK represents a deposit of any Affiliate of BANK.
5.31 Accounting
Controls.
Each
of
the BANK Companies has devised and maintained systems of internal accounting
control sufficient to provide reasonable assurances that: (i) all material
transactions are executed in accordance with general or specific authorization
of the Board of Directors and the duly authorized executive officers of the
applicable BANK Company; (ii) all material transactions are recorded as
necessary to permit the preparation of financial statements in conformity with
GAAP with respect to the applicable BANK Company or any other criteria
applicable to such financial statements, and to maintain proper accountability
for items therein; (iii) access to the material properties and assets of
each of the BANK Companies is permitted only in accordance with general or
specific authorization of the Board of Directors and the duly authorized
executive officers; and (iv) the recorded accountability for items is
compared with the actual levels at reasonable intervals and appropriate actions
taken with respect to any differences.
5.32 Deposit
Insurance.
The
deposit accounts of BANK are insured by the FDIC in accordance with the
provisions of the Federal Deposit Insurance Act (the “Act”). BANK has paid all
regular premiums and special assessments and filed all reports required under
the Act.
5.33 Registration
Obligations.
BANK
is
not under any obligation, contingent or otherwise, which will survive the Merger
to register its securities under the 1933 Act or any state securities
laws.
5.34 Charter
Provisions. Each
BANK
Company 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 BANK Company or restrict or impair the ability of TIB or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a stockholder
with
respect to, shares of any BANK Company that may be directly or indirectly
acquired or controlled by it.
ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF TIB
TIB
hereby represents and warrants to BANK as follows:
6.1 Organization,
Standing and Power.
TIB
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 and
to
incur its Liabilities. TIB 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 Material Adverse
Effect on TIB.
6.2 Authority;
No Breach By Agreement.
(a) TIB
has
the corporate power and authority necessary to execute, deliver and perform
its
obligations under this Agreement and to consummate the transactions provided
for
herein. The execution, delivery and performance of this Agreement and the
consummation of the transactions provided for herein, including the Merger,
have
been, or prior to the Effective Time will be, duly and validly authorized by
all
necessary corporate action on the part of TIB. Subject to required regulatory
consents, this Agreement represents a legal, valid and binding obligation of
TIB, enforceable against TIB in accordance with its terms.
(b) Neither
the execution and delivery of this Agreement by TIB, nor the consummation by
TIB
of the transactions provided for herein, nor compliance by TIB with any of
the
provisions hereof, will (i) conflict with or result in a breach of any
provision of TIB’s Restated Certificate of Incorporation or Bylaws, or
(ii) except as set forth on Schedule 6.2(b),
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 TIB Company under, any
Contract or Permit of any TIB Company, where failure to obtain such Consent
is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on TIB, or, (iii) subject to receipt of the requisite approvals
referred to in subsection 9.1(b) of this Agreement, violate any Law or Order
applicable to any TIB Company or any of their respective Assets.
(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, 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
TIB, no notice to, filing with or Consent of, any public body or authority
is
necessary for the consummation by TIB of the Merger and the other transactions
provided for in this Agreement.
6.3 Capital
Stock.
The
authorized capital stock of TIB, as of the date of this Agreement, consists
of
(i) 40,000,000 shares of TIB Common Stock, of which 11,715,744 shares are
issued and outstanding, and (ii) 5,000,000 shares of preferred stock, no
par value per share, none of which is issued and outstanding. All of the issued
and outstanding shares of TIB Common Stock are, and all of the shares of TIB
Common Stock to be issued in exchange for shares of BANK 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
non-assessable under the FBCA. None of the outstanding shares of TIB Common
Stock has been, and none of the shares of TIB Common Stock to be issued in
exchange for shares of BANK Common Stock upon consummation of the Merger will
be, issued in violation of any preemptive rights of the current or past
stockholders of TIB. As of the date hereof, TIB has granted options to purchase
716,458 shares of TIB Common Stock, and granted 70,012 restricted shares of
TIB
Common Stock, under its various stock plans.
6.4 Reports
and Financial Statements.
Since
January 1, 2002, or the date of organization or acquisition if later, each
TIB Company has filed all reports and statements, together with any amendments
required to be made with respect thereto, that it was required to file with
(i) the SEC, including, but not limited to, Forms 10-K, Forms 10-Q, Forms
8-K, and proxy statements, (ii) other Regulatory Authorities, and
(iii) any applicable state securities or banking authorities. As of their
respective dates, each of such reports and documents, including the TIB
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 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. Since January 1, 2002, except for normal examinations
conducted by Regulatory Authorities in the regular course of the business of
the
TIB Companies, to the Knowledge of any TIB Company, no Regulatory Authority
has
initiated any proceeding or, to the Knowledge of any TIB Company, investigation
into the business or operations of any TIB Company. There is no unresolved
violation, criticism or exception by any Regulatory Authority with respect
to
any report or statement or any examinations of any TIB Company or any liens
in
favor of any TIB Company. The TIB Financial Statements included in such reports
(excluding call reports), as of the dates thereof and for the periods covered
thereby: (i) are or if dated after the date of this Agreement, will be, in
accordance with the books and records of the TIB Companies, which are or will
be, as the case may be, complete and correct and which have been or will have
been, as the case may be, maintained in accordance with good business practices,
and (ii) present, or will present, fairly the consolidated financial
position of the TIB Companies as of the dates indicated and the consolidated
results of operations, changes in stockholders’ equity, and cash flows of the
TIB Companies for the periods indicated, in accordance with GAAP (subject to
exceptions as to consistency specified therein or as may be indicated in the
notes thereto or, in the case of interim financial statements, to normal
year-end adjustments that are not material).
6.5 Absence
of Undisclosed Liabilities.
No
TIB
Company has any Liabilities that are reasonably likely to have, individually
or
in the aggregate, a Material Adverse Effect on TIB, except Liabilities accrued
or reserved against in the consolidated balance sheets of TIB as of December
31,
2005, included in the TIB Financial Statements or reflected in the notes
thereto. No TIB Company has incurred or paid any Liability since December 31,
2005, except for such Liabilities incurred or paid 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 Material Adverse Effect
on
TIB.
6.6 Absence
of Certain Changes or Events.
Except
as
set forth on Schedule 6.6,
since
December 31, 2005 (i) there have been no events, changes or occurrences
that have had, or are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on TIB, (ii) the TIB Companies 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 TIB provided in Article 7 of this Agreement, and
(iii) to TIB’s Knowledge, no fact or condition exists which TIB believes
will cause a Material Adverse Effect on TIB in the future, subject to changes
in
general economic or industry conditions.
6.7 Compliance
with Laws.
TIB
is
duly registered as a bank holding company under the BHC Act. Each TIB Company
has in effect all Permits necessary for it to own, lease or operate its 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 Material Adverse Effect on TIB, and there has occurred no Default
under any such Permit. None of the TIB Companies:
(a) is
in
material violation of any Laws, Orders or Permits applicable to its business
or
employees conducting its business; or
(b) 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 TIB Company is not in compliance with any of
the Laws or Orders that such governmental authority or Regulatory Authority
enforces, (ii) threatening to revoke any Permits, or (iii) requiring
any TIB Company 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, that 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.
6.8 Legal
Proceedings.
Except
as
set forth on Schedule
6.8,
there
is no Litigation instituted or pending, or, to the Knowledge of TIB, threatened
(or unasserted but considered probable of assertion) against any TIB Company,
or
against any Asset, interest, or right of any of them, that is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on TIB,
nor
are there any Orders of any Regulatory Authorities, other governmental
authorities or arbitrators outstanding against any TIB Company, that are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on TIB.
6.9 Statements
True and Correct.
No
statement, certificate, instrument or other writing furnished or to be furnished
by any TIB Company or any Affiliate thereof to BANK pursuant to this Agreement,
including the Exhibits or Schedules hereto, 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
TIB Company or any Affiliate thereof for inclusion in the Proxy
Statement/Prospectus to be mailed to BANK’s stockholders in connection with the
BANK Stockholders’ Meeting, and any other documents to be filed by an TIB
Company or any Affiliate thereof with the SEC or any other Regulatory Authority
in connection with the transactions provided for herein, will, at the respective
time such documents are filed, and with respect to the Proxy
Statement/Prospectus, when first mailed to the stockholders of BANK, 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. All documents that any TIB Company or
any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions provided for herein will comply as to form
in
all material respects with the provisions of applicable Law.
6.10 Tax
and Regulatory Matters.
No
TIB
Company or any Affiliate thereof has taken any action or has any Knowledge
of
any fact or circumstance that is reasonably likely to (i) prevent the
transactions contemplated hereby, including the Merger, from qualifying as
a
reorganization within the meaning of Section 368(a) of the IRC, or
(ii) materially impede or delay receipt of any Consents of Regulatory
Authorities referred to in subsection 9.1(b) of this Agreement or result in
the
imposition of a condition or restriction of the type referred to in the last
sentence of such subsection.
6.11 Regulatory
Approvals.
TIB
knows
of no reason why all requisite regulatory approvals regarding the Merger should
not or cannot be obtained.
6.12 Opinion
of Counsel.
TIB has
no Knowledge of any facts that would preclude issuance of the opinion of counsel
referred to in subsection 9.3(d).
ARTICLE
7
CONDUCT
OF BUSINESS PENDING CONSUMMATION
7.1 Covenants
of Both Parties.
(a) Unless
the prior written consent of the other Party shall have been obtained, and
except as otherwise expressly provided for herein, each Party shall and shall
cause each of its Subsidiaries to (i) conduct its business in the usual, regular
and ordinary course consistent with past practice and prudent banking
principles, (ii) preserve intact its business organization, goodwill,
relationships with depositors, customers and employees, and Assets and maintain
its rights and franchises, and (iii) take no action, except as required by
applicable Law, which would (A) adversely affect the ability of any Party
to obtain any Consents required for the transactions provided for herein without
imposition of a condition or restriction of the type referred to in the last
sentences of subsections 9.1(b) or 9.1(c) of this Agreement or
(B) adversely affect the ability of any Party to perform its covenants and
agreements under this Agreement.
(b) During
the period from the date of this Agreement to the Effective Time, each of TIB
and BANK shall cause its Designated Representative (and, if necessary,
representatives of any of its Subsidiaries) to confer on a regular and frequent
basis with the Designated Representative of the other Party hereto and to report
on the general status of its and its Subsidiaries’ ongoing operations. Each of
TIB and BANK shall permit the other Party hereto to make such investigation
of
its business or properties and its Subsidiaries and of their respective
financial and legal conditions as the investigating Party may reasonably
request. Each of TIB and BANK shall promptly notify the other Party hereto
concerning (a) any material change in the normal course of its or any of
its Subsidiaries’ businesses or in the operation of their respective properties
or in their respective conditions; (b) any material governmental
complaints, investigations or hearings (or communications indicating that the
same may be contemplated) or the institution or the threat of any material
Litigation involving it or any of its Subsidiaries; and (c) the occurrence
or impending occurrence of any event or circumstance that would cause or
constitute a breach of any of the representations, warranties or covenants
contained herein; and each of TIB and BANK shall, and shall cause each of their
respective Subsidiaries to, use its commercially reasonable efforts to prevent
or promptly respond to same.
(c) Each
Party shall have the right, without being in breach of its representations
and
warranties set forth in this Agreement, to supplement or amend its disclosure
schedules and to add additional references to its disclosure schedules
concerning the representations and warranties contained in this Agreement,
with
respect to any matter arising after the date of this Agreement or discovered
between such date and the Effective Time. A copy of such supplemented or amended
disclosure schedules shall be provided promptly to the other Party. Any such
supplemented or amended disclosure schedules shall not give the other Party
the
right not to proceed with the consummation of the Merger unless the facts
underlying such supplemented or amended disclosures would be reasonably likely
to result in a Material Adverse Effect.
7.2 Covenants
of BANK.
From
the
date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, BANK 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 without the prior written consent of the
chief executive officer, president or chief financial officer of TIB, which
consent shall not be unreasonably withheld, except in connection with the
actions referenced in sub-sections (ii), (iv) or (v), in which case such consent
may be withheld for any reason or no reason:
(i) amend
the
Articles of Incorporation, Bylaws or other governing instruments of any BANK
Company; or
(ii) incur
any
additional debt obligation or other obligation for borrowed money except in
the
ordinary course of the business of BANK Subsidiaries consistent with past
practices (which shall include, for BANK Subsidiaries that are depository
institutions, creation of deposit liabilities, qualification as a public
depository, purchases of federal funds, sales of certificates of deposit,
advances from the FRB or the Federal Home Loan Bank, entry into repurchase
agreements fully secured by U.S. government or agency securities and issuances
of letters of credit), or impose, or suffer the imposition, on any share of
stock held by any BANK Company of any Lien or permit any such Lien to exist;
or
(iii) repurchase,
redeem or otherwise acquire or exchange, directly or indirectly, any shares,
or
any securities convertible into any shares, of the capital stock of any BANK
Company, except in connection with the surrender of shares of BANK Common Stock
in payment of the exercise price of outstanding options to purchase BANK Common
Stock or the deemed acquisition of shares upon a “cashless exercise” of any such
option, or declare or pay any dividend or make any other distribution in respect
of BANK’s capital stock; or
(iv) except
for this Agreement and as required upon exercise of any of the BANK Options,
issue, sell, pledge, encumber, enter into any Contract to issue, sell, pledge,
or encumber, authorize the issuance of, or otherwise permit to become
outstanding, any additional shares of BANK Common Stock or any other capital
stock of any BANK Company, or any stock appreciation rights, or any option,
warrant, conversion or other right to acquire any such stock, or any security
convertible into any shares of such stock; or
(v) adjust,
split, combine or reclassify any capital stock of any BANK Company or issue
or
authorize the issuance of any other securities with respect to or in
substitution for shares of its capital stock or sell, lease, mortgage or
otherwise encumber any shares of capital stock of any BANK Subsidiary or any
Asset other than in the ordinary course of business for reasonable and adequate
consideration; or
(vi) acquire
any direct or indirect equity interest in any Person, other than in connection
with foreclosures in the ordinary course of business; or
(vii) grant
any
increase in compensation or benefits to the employees or officers of any BANK
Company, except in accordance with past practices with respect to employees;
pay
any bonus except in accordance with past practices and pursuant to the
provisions of an applicable program or plan adopted by the BANK Board prior
to
the date of this Agreement; enter into or amend any severance agreements with
officers of any BANK Company; grant any material increase in fees or other
increases in compensation or other benefits to directors of any BANK Company;
provided,
however,
that
the foregoing shall not preclude the BANK from adjusting the compensation and
benefits of any employee promoted to an additional position within the BANK;
or
(viii) enter
into or amend any employment Contract between any BANK Company and any Person
(unless such amendment is required by Law) that the BANK Company 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
(ix) adopt
any
new employee benefit plan of any BANK Company or make any material change in
or
to any existing employee benefit plans of any BANK Company 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
(x) make
any
material change in any accounting methods or systems of internal accounting
controls, except as may be appropriate to conform to changes in regulatory
accounting requirements or GAAP; or
(xi) (A) commence
any Litigation other than in accordance with past practice, (B) settle any
Litigation involving any Liability of any BANK Company for material money
damages or restrictions upon the operations of any BANK Company, or,
(C) except in the ordinary course of business, modify, amend or terminate
any material Contract or waive, release, compromise or assign any material
rights or claims; or
(xii) enter
into any material transaction or course of conduct not in the ordinary course
of
business, or not consistent with safe and sound banking practices, or not
consistent with applicable Laws; or
(xiii) fail
to
file timely any report required to be filed by it with any Regulatory Authority;
or
(xiv) make
any
Loan or advance to any 5% stockholder, director or officer of BANK, or any
member of the immediate family of the foregoing, or any Related Interest (to
the
Knowledge of BANK) of any of the foregoing, except in compliance with the
provisions of FRB Regulation O, or
(xv) cancel
without payment in full, or modify in any material respect any Contract relating
to, any loan or other obligation receivable from any 5% stockholder, director
or
officer of any BANK Company or any member of the immediate family of the
foregoing, or any Related Interest (to the Knowledge of BANK or any of its
Subsidiaries) of any of the foregoing; or
(xvi) enter
into any Contract for services or otherwise with any of the 5% stockholders,
directors, officers or employees of any BANK Company or any member of the
immediate family of the foregoing, or any Related Interest (Known to BANK or
any
of its Subsidiaries) of any of the foregoing involving the expenditure of more
than $1,000 as to any one individual (including any business directly or
indirectly controlled by any such person), or more than $5,000 for all such
contracts for commitments in the aggregate for all such individuals;
or
(xvii) modify,
amend or terminate any material Contract or waive, release, compromise or assign
any material rights or claims, except in the ordinary course of business and
for
fair consideration; or
(xviii) file
any
application to relocate or terminate the operations of any banking office of
it
or any of its Subsidiaries; or
(xix) except
as
may be required by applicable Law, change its or any of its Subsidiaries’
lending, investment, liability management and other material banking policies
in
any material respect; or
(xx) intentionally
take any action that would reasonably be expected to jeopardize or delay the
receipt of any of the regulatory approvals required in order to consummate
the
transactions provided for in this Agreement; or
(xxi) take
any
action that would cause the transactions provided for in this Agreement to
be
subject to requirements imposed by any Takeover Law; and BANK shall take all
necessary steps within its control to exempt (or ensure the continued exemption
of) the transactions provided for in this Agreement from, or if necessary
challenge the validity or applicability of, any applicable Takeover Law, as
now
or hereafter in effect; or
(xxii) make
or
renew any Loan except in accordance with BANK’s established policies and
procedures and limits in effect as of the date of this Agreement;
or
(xxiii) increase
or decrease the rate of interest paid on time deposits or on certificates of
deposit, except in a manner and pursuant to policies consistent with BANK and
BANK’s past policies; or
(xxiv) purchase
or otherwise acquire any investment securities for its own account having an
average remaining life to maturity greater than five years (except for municipal
bonds of any maturity after consultation by a Designated Representative of
BANK
with a Designated Representative of TIB), or any asset-backed security, other
than those issued or guaranteed by the Government National Mortgage Association,
the Federal National Mortgage Association or Home Loan Mortgage Corporation;
or
(xxv) except
for residential real property owned by and reflected on the books of BANK as
of
the date hereof, the sale of which will not result in a material loss, sell,
transfer, convey or otherwise dispose of any real property (including “other
real estate owned”) or interests therein having a book value in excess of or in
exchange for consideration in excess of $50,000;
(xxvi) make
any
capital expenditures individually in excess of $25,000, or in the aggregate
in
excess of $50,000, without providing notice of such expenditures to a Designated
Representative of TIB within five (5) days after incurring such expenditures;
or
(xxvii) make,
declare, pay or set aside for payment any dividend payable in cash, stock or
property on or in respect of, or declare or make any distribution on any shares
of capital stock, or directly or indirectly adjust, split, combine, reclassify,
redeem, purchase or otherwise acquire any shares of its capital
stock
7.3 Covenants
of TIB.
From
the
date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, TIB 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 without the prior written consent of the
chief executive officer, president or chief financial officer of BANK, which
consent shall not be unreasonably withheld:
(a) fail
to
file timely any report required to be filed by it with Regulatory Authorities,
including the SEC; or
(b) take
any
action that would cause the TIB Common Stock to cease to be traded on the NASDAQ
or a national securities exchange.
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 that (i) is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on it or
(ii) would cause or constitute a material breach of any of its
representations, warranties or covenants contained herein, and to use its
commercially 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 BANK shall deliver to TIB copies of all such reports filed by BANK
or
its Subsidiaries promptly after the same are filed.
7.6 Acquisition
Proposals.
(a) As
of the
date hereof, BANK shall not, nor shall it permit any of its Subsidiaries to,
nor
shall it or its Subsidiaries authorize or permit any of their respective
officers, directors, employees, representatives or agents to, directly or
indirectly, (i) solicit, initiate or knowingly encourage (including by way
of furnishing non-public information) any inquiries regarding, or the making
of
any proposal which constitutes, any Acquisition Proposal, (ii) enter into
any letter of intent or agreement related to any Acquisition Proposal other
than
a confidentiality agreement (each, an “Acquisition Agreement”) or
(iii) participate in any discussions or negotiations regarding, or take any
other action knowingly to facilitate any inquiries or the making of any proposal
that constitutes, or that would reasonably be expected to lead to, any
Acquisition Proposal; provided,
however,
that
if, at any time prior to the BANK Stockholders’ Meeting, and without any breach
of the terms of this Section 7.6(a), BANK receives an Acquisition Proposal
from
any Person that in the good faith judgment of the BANK Board (after receiving
the advice of its legal and financial advisors (who shall be a nationally
recognized investment banking firm)) is, or is reasonably likely to lead to
the
delivery of, a Superior Proposal, BANK may (x) furnish information
(including non-public information) with respect to BANK to any such Person
pursuant to a confidentiality agreement containing confidentiality provisions
no
more favorable to such Person than those in the Confidentiality Agreement
between TIB and BANK dated January 23, 2006, and (y) participate in
negotiations with such Person regarding such Acquisition Proposal. Neither
the
BANK Board nor any committee thereof shall (i) withdraw or modify, or propose
to
withdraw or modify, in a manner adverse to TIB, the approval or recommendation
by the BANK Board, or such committee thereof, of the Merger or this Agreement;
(ii) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal; or (iii) authorize or permit BANK or any of its
Subsidiaries to enter into any Acquisition Agreement. Notwithstanding the
foregoing, upon satisfaction of the notice, matching, payment and other
requirements and procedures of Section 10.1(k) of this Agreement, the BANK
Board
may approve or recommend (and, in connection therewith, withdraw or modify
its
approval or recommendation of this Agreement or the Merger) a Superior
Proposal.
(b) BANK
agrees that it and its Subsidiaries shall, and BANK shall direct its and its
Subsidiaries’ respective officers, directors, employees, representatives and
agents to, immediately cease and cause to be terminated any activities,
discussions or negotiations with any Persons with respect to any Acquisition
Proposal. BANK agrees that it will notify TIB promptly (but no later than 24
hours) if, to BANK’s Knowledge, any Acquisition Proposal is received by, any
information is requested from, or any discussions or negotiations relating
to an
Acquisition Proposal are sought to be initiated or continued with, BANK, its
Subsidiaries, or their officers, directors, employees, representatives or
agents. The notice shall indicate the name of the Person making such Acquisition
Proposal or taking such action and the material terms and conditions of any
proposals or offers, and thereafter BANK shall keep TIB informed, on a current
basis, of the status and terms of any such proposals or offers and the status
of
any such discussions or negotiations. BANK also agrees that it will promptly
request each Person that has heretofore executed a confidentiality agreement
in
connection with any Acquisition Proposal to return or destroy all confidential
information heretofore furnished to such Person by or on behalf of it or any
of
its Subsidiaries.
7.7 NASDAQ
Qualification.
TIB
shall,
prior to the Effective Time, take commercially reasonable steps to ensure that
all TIB Common Stock to be issued in the Merger is designated as a NASDAQ
“national market system security” within the meaning of Rule 11Aa2-1 of the SEC.
ARTICLE
8
ADDITIONAL
AGREEMENTS
8.1 Regulatory
Matters.
(a) TIB
shall
promptly prepare and file the S-4 Registration Statement with the SEC after
the
date hereof. BANK and its counsel, accountants and advisors shall have the
right
to review and comment upon the Registration Statement, and revisions made in
response to such comments, a reasonable period prior to filing. TIB shall use
its commercially reasonable efforts to have the S-4 Registration Statement
declared effective under the 1933 Act as promptly as practicable after such
filing. Once the S-4 Registration Statement has been declared effective by
the
SEC, BANK shall mail the Proxy Statement/Prospectus to its stockholders
simultaneously with delivery of notice of the meeting of stockholders called
to
approve the Merger. If at any time prior to the Effective Time of the Merger
any
event shall occur which should be set forth in an amendment of, or a supplement
to, the Proxy Statement/Prospectus, BANK will promptly inform TIB and cooperate
and assist TIB in preparing such amendment or supplement and mailing the same
to
the stockholders of BANK. Subject to Section 10.1(k) of this Agreement, the
BANK
Board shall recommend that the holders of BANK Common Stock vote for and adopt
the Merger provided for in the Proxy Statement/Prospectus and this
Agreement.
(b) The
Parties shall cooperate with each other and use their commercially reasonable
efforts to promptly prepare and file all necessary documentation, to effect
all
applications, notices, petitions and filings and to obtain as promptly as
practicable all Consents of all third parties and Regulatory Authorities which
are necessary or advisable to consummate the transactions provided for in this
Agreement, including without limitation the Merger and the Subsidiary Merger.
TIB and BANK shall have the right to review in advance, and to the extent
practicable each will consult the other on, in each case subject to applicable
Laws relating to the exchange of information, all the information relating
to
TIB or BANK, as the case may be, and any of their respective Subsidiaries,
which
appear in any filing made with, or written materials submitted to, any third
party or any Regulatory Authority in connection with the transactions provided
for in this Agreement. In exercising the foregoing right, each of the Parties
shall act reasonably and as promptly as practicable. The Parties agree that
they
will consult with each other with respect to the obtaining of all Permits and
Consents, approvals and authorizations of all third parties and Regulatory
Authorities necessary or advisable to consummate the transactions provided
for
in this Agreement, and each Party will keep the other apprised of the status
of
matters relating to completion of the transactions provided for in this
Agreement.
(c) TIB
and
BANK shall, upon request, furnish each other all information concerning
themselves, their Subsidiaries, directors, officers and stockholders and such
other matters that may be reasonably necessary or advisable in connection with
the Proxy Statement/Prospectus, the S-4 Registration Statement or any other
statement, filing, notice or application made by or on behalf of TIB, BANK
or
any of their Subsidiaries to any Regulatory Authority in connection with the
Merger and the other transactions provided for in this Agreement.
(d) TIB
and
BANK shall promptly furnish each other with copies of all applications, notices,
petitions and filings with all Regulatory Authorities, and all written
communications received by TIB or BANK, as the case may be, or any of their
respective Subsidiaries, Affiliates or associates from, or delivered by any
of
the foregoing to, any Regulatory Authority, in respect of the transactions
provided for herein.
(e) TIB
will
indemnify and hold harmless BANK and its officers, directors and employees
from
and against any and all actions, causes of actions, losses, damages, expenses
or
Liabilities to which any such entity, or any director, officer, employee or
controlling person thereof, may become subject under applicable Laws (including
the 1933 Act and the 0000 Xxx) and rules and regulations thereunder and will
reimburse BANK, and any such director, officer, employee or controlling person
for any legal or other expenses reasonably incurred in connection with
investigating or defending any actions, whether or not resulting in liability,
insofar as such losses, damages, expenses, liabilities or actions arise out
of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Proxy Statement/Prospectus or
any
application, notice, petition, or filing with any Regulatory Authority or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein, or necessary in order to make
the
statement therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing in connection therewith by any TIB Company.
(f) BANK
will
indemnify and hold harmless TIB and its officers, directors and employees from
and against any and all actions, causes of actions, losses, damages, expenses
or
Liabilities to which any such entity, or any director, officer, employee or
controlling person thereof, may become subject under applicable Laws (including
the 1933 Act and the 0000 Xxx) and rules and regulations thereunder and will
reimburse TIB, and any such director, officer, employee or controlling person
for any legal or other expenses reasonably incurred in connection with
investigating or defending any actions, whether or not resulting in liability,
insofar as such losses, damages, expenses, liabilities or actions arise out
of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Proxy Statement/Prospectus or
any
application, notice, petition, or filing with any Regulatory Authority or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein, or necessary in order to make
the
statement therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing in connection therewith by any BANK Company.
8.2 Access
to Information.
(a) During
the period beginning on the date of this Agreement and ending on the sooner
to
occur of the Effective Time or the termination of this Agreement in accordance
with its terms, upon reasonable notice and subject to applicable Laws relating
to the exchange of information, TIB and BANK shall, and shall cause each of
their respective Subsidiaries to, afford to the officers, employees,
accountants, counsel and other representatives of the other, access to all
its
properties, books, contracts, commitments and records and, during such period,
each of TIB and BANK shall, and shall cause each of their respective
Subsidiaries to, make available to the other (i) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of the Securities Laws or
federal or state banking Laws (other than reports or documents which such Party
is not permitted to disclose under applicable Law, in which case such Party
shall notify the other Party of the nondisclosure and the nature of such
information) and (ii) also other information concerning its business,
properties and personnel as the other party may reasonably request.
(b) All
information furnished by TIB to BANK or its representatives pursuant hereto
shall be treated as the sole property of TIB and, if the Merger shall not occur,
BANK and its representatives shall return to TIB all of such written information
and all documents, notes, summaries or other materials containing, reflecting
or
referring to, or derived from, such information. BANK shall, and shall use
its
commercially reasonable efforts to cause its representatives to, keep
confidential all such information, and shall not directly or indirectly use
such
information for any competitive or other commercial purpose. The obligation
to
keep such information confidential shall continue for five years from the date
the proposed Merger is abandoned and shall not apply to (i) any information
which (x) was already in BANK’s possession prior to the disclosure thereof
by TIB; (y) was then generally known to the public; or (z) was
disclosed to BANK by a third party not bound by an obligation of
confidentiality, or (ii) disclosures made as required by Law.
(c) All
information furnished by BANK or its Subsidiaries to TIB or its representatives
pursuant hereto shall be treated as the sole property of BANK and, if the Merger
shall not occur, TIB and its representatives shall return to BANK all of such
written information and all documents, notes, summaries or other materials
containing, reflecting or referring to, or derived from, such information.
TIB
shall, and shall use its commercially reasonable efforts to cause its
representatives to, keep confidential all such information, and shall not
directly or indirectly use such information for any competitive or other
commercial purpose. The obligation to keep such information confidential shall
continue for five years from the date the proposed Merger is abandoned and
shall
not apply to (i) any information which (x) was already in TIB’s
possession prior to the disclosure thereof by BANK or any of its Subsidiaries;
(y) was then generally known to the public; or (z) was disclosed to
TIB by a third party not bound by an obligation of confidentiality, or
(ii) disclosures made as required by Law.
(d) No
investigation by any of the parties hereto or their respective representatives
shall affect the representations and warranties of the Parties set forth
herein.
8.3 Efforts
to Consummate.
Subject
to the terms and conditions of this Agreement, each of BANK and TIB shall use
its commercially 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 practicable after
the date of this Agreement, the transactions provided for in this Agreement,
including without limitation obtaining of all of the Consents and satisfying
the
conditions contained in Article 9 hereof.
8.4 BANK
Stockholders’ Meeting.
BANK
shall call a meeting of its stockholders (the “BANK Stockholders’ Meeting”) to
be held as soon as reasonably practicable after the date the S-4 Registration
Statement is declared effective by the SEC for the purpose of voting upon this
Agreement and such other related matters as it deems appropriate. In connection
with the BANK Stockholders’ Meeting, (a) BANK shall prepare with the
assistance of TIB a notice of meeting; (b) TIB shall furnish all
information concerning it that BANK may reasonably request in connection with
conducting the BANK Stockholders’ Meeting; (c) TIB shall prepare and
furnish to BANK, for printing, copying and distribution to BANK’s stockholders
at BANK’s expense, the form of the Proxy Statement/Prospectus; (d) BANK
shall furnish all information concerning it that TIB may reasonably request
in
connection with preparing the Proxy Statement/Prospectus; (e) subject to
Section 10.1(k) of this Agreement, the BANK Board shall recommend to its
stockholders the approval of this Agreement; and (f) BANK shall use its
best efforts to obtain its stockholders’ approval. The Parties will use their
commercially reasonable efforts to prepare a preliminary draft of the Proxy
Statement/Prospectus within 30 days of the date of this Agreement, and will
consult with one another on the form and content of the Proxy
Statement/Prospectus (including the presentation of draft copies of such proxy
materials to the other) prior to filing with the SEC and delivery to BANK’s
stockholders. BANK will use its commercially reasonable efforts to deliver
notice of the Stockholders’ Meeting and the Proxy Statement/Prospectus as soon
as practicable after the S-4 Registration Statement has been declared effective
by the SEC and TIB has delivered the Proxy Statement/Prospectus to BANK in
accordance with sub-section (c) above.
8.5 Certificate
of Objections.
As
soon
as practicable (but in no event more than three (3) business days) after the
BANK Stockholders’ Meeting, BANK shall deliver to TIB a certificate of the
Secretary of BANK containing the names of the stockholders of BANK that both
(a) gave written notice prior to the taking of the vote on this Agreement
at the BANK Stockholders’ Meeting that they dissent from the Merger, and
(b) voted against approval of this Agreement or abstained from voting with
respect to the approval of this Agreement (“Certificate of Objections”). The
Certificate of Objections shall include the number of shares of BANK Common
Stock held by each such stockholder and the mailing address of each such
stockholder.
8.6 Publicity.
Neither
TIB nor BANK shall, or shall permit any of their respective Subsidiaries or
affiliates to issue or cause the publication of any press release or other
public announcement with respect to, or otherwise make any public disclosure
concerning, the transactions provided for in this Agreement without the consent
of the other Party, which consent will not be unreasonably withheld. Prior
to
issuing or publishing any press release or other public announcement or
disclosure regarding the transaction contemplated by this Agreement, the
releasing party shall provide a copy of the release or announcement to the
other
Party prior to the issuance, and shall provide a reasonable opportunity for
comment. Nothing in this Section 8.6, however, shall be deemed to prohibit
any
Party from making any disclosure which it deems necessary or advisable, with
the
advice of counsel, in order to satisfy such Party’s disclosure obligations
imposed by Law or the rules of NASDAQ.
8.7 Expenses.
All
costs
and expenses incurred in connection with the transactions provided for in this
Agreement, including without limitation, registration fees, printing fees,
mailing fees, attorneys’ fees, accountants’ fees, other professional fees and
costs related to expenses of officers and directors of BANK and the BANK
Companies, shall be paid by the party incurring such costs and expenses;
provided,
however,
without
the consent of TIB, all such costs and expenses incurred by BANK shall not
exceed $100,000, exclusive of the Advisor’s Fee payable to the BANK Financial
Advisor in accordance with Section 5.24, the expenses contemplated by Sections
8.12 and 9.2(f), and the adjustments contemplated by Section 8.14, of this
Agreement. Each Party hereby agrees to and shall indemnify the other Party
against any liability arising from any such fee or payment incurred by such
Party. Nothing contained herein shall limit either Party’s rights under Article
10 to recover any damages arising out of a Party’s willful breach of any
provision of this Agreement.
8.8 Failure
to Close.
(a) TIB
expressly agrees to consummate the transactions provided for herein upon the
completion of all conditions to Closing and shall not take any action reasonably
calculated to prevent the Closing and shall not unreasonably delay any action
reasonably required to be taken by it to facilitate the Closing.
(b) BANK
expressly agrees to consummate the transactions provided for herein upon the
completion of all conditions to Closing and shall not take any action reasonably
calculated to prevent the Closing and shall not unreasonably delay any action
reasonably required to be taken by it to facilitate the Closing.
8.9 Fairness
Opinion.
The
BANK
Board has engaged Xxxxx X. Xxxxx & Co. (the “BANK Financial Advisor”) to act
as advisor to the BANK Board during the transaction and to opine separately
as
to the fairness from a financial point of view of the Merger consideration
to
the BANK stockholders. BANK has received from the BANK Financial Advisor an
opinion that, as of the date hereof, the consideration to be received by the
stockholders of the BANK in the Merger is fair to the stockholders of BANK
from
a financial point of view.
8.10 Tax
Treatment.
Each
of
the Parties undertakes and agrees to use its commercially reasonable efforts
to
cause the Merger, and to take no action which would cause the Merger not to
qualify as a “reorganization” within the meaning of Section 368(a) of the IRC
for federal income tax purposes.
8.11 Agreement
of Affiliates.
BANK
has
disclosed on Schedule
8.11
each
Person whom it reasonably believes is an “affiliate” of BANK for purposes of
Rule 145 under the 1933 Act. BANK shall cause each such Person to deliver to
TIB
not later than 30 days after the date of this Agreement a written agreement,
substantially in the form of Exhibit D
providing that such Person will not sell, pledge, transfer, or otherwise dispose
of the shares of BANK 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 TIB 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 TIB
shall be entitled to place restrictive legends upon certificates for shares
of
TIB Common Stock issued to affiliates of BANK pursuant to this Agreement to
enforce the provisions of this Section 8.11). TIB shall not be required to
maintain the effectiveness of the Registration Statement under the 1933 Act
for
the purposes of resale of TIB Common Stock by such affiliates.
8.12 Environmental
Audit; Title Policy; Survey.
(a) At
the
election of TIB, BANK will procure and deliver, at TIB’s expense, with respect
to each parcel of real property that any of the BANK Companies owns, leases,
subleases or is obligated to purchase, at least thirty (30) days prior to the
Effective Time, such environmental audits as TIB may request, which audits
shall
be reasonably acceptable to and shall be conducted by a firm reasonably
acceptable to TIB.
(b) At
the
election of TIB, BANK will, at TIB’s expense, with respect to each parcel of
real property that BANK owns, leases, subleases or is obligated to purchase,
procure and deliver to TIB, at least thirty (30) days prior to the Effective
Time, a commitment to issue title insurance in such amounts and by such
insurance company reasonably acceptable to TIB, which policy shall be free
of
all material Liens and exceptions to TIB’s reasonable satisfaction.
(c) At
the
election of TIB, with respect to each parcel of real property as to which a
title insurance policy is to be procured pursuant to subsection (b) above,
BANK,
at TIB’s expense, will procure and deliver to TIB at least thirty (30) days
prior to the Effective Time, a survey of such real property, which survey shall
be reasonably acceptable to and shall be prepared by a licensed surveyor
reasonably acceptable to TIB, disclosing the locations of all improvements,
easements, sidewalks, roadways, utility lines and other matters customarily
shown on such surveys and showing access affirmatively to public streets and
roads and providing the legal description of the property in a form suitable
for
recording and insuring the title thereof. Such surveys shall not disclose any
survey defect or encroachment from or onto such real property that has not
been
cured or insured over prior to the Effective Time. In addition, BANK shall
deliver to TIB a complete legal description for each parcel of real estate
or
interest owned, leased or subleased by any BANK Company or in which any BANK
Company has any ownership or leasehold interest.
8.13 Compliance
Matters.
Prior
to
the Effective Time, BANK shall take, or cause to be taken, all commercially
reasonable steps requested by TIB to cure any material deficiencies in
regulatory compliance by BANK that have been reported to BANK by its independent
auditors or by the Regulatory Authorities; provided,
however,
that
TIB shall not be responsible for discovering such defects, shall not have any
obligation to disclose the existence of such defects to BANK, and shall not
have
any liability resulting from such deficiencies or attempts to cure
them.
8.14 Conforming
Accounting and Reserve Policies.
At
the
request of TIB, BANK shall immediately prior to Closing establish and take
such
charge offs, reserves and accruals as TIB reasonably shall request to conform
BANK’s loan, accrual, capital, reserve and other accounting policies to the
policies of TIB (collectively, the “Conforming Adjustments”).
8.15 Notice
of Deadlines.
Schedule
8.15
lists
the deadlines for extensions or terminations of any material leases, agreements
or licenses (including specifically real property leases and data processing
agreements) to which BANK is a party.
8.16 Fixed
Asset Inventory.
At
TIB’s
request, at least thirty (30) days prior to the Effective Time, BANK shall
take,
or shall cause to be taken, an inventory of all fixed assets of the BANK
Companies to verify the presence of all items listed on their respective
depreciation schedules, and BANK shall allow TIB’s representatives, at the
election of TIB, to participate in or be present for such inventory and shall
deliver to TIB copies of all records and reports produced in connection with
such inventory.
8.17 Directors’
and Officers’ Indemnification.
(a) From
and
after the Effective Time, TIB shall indemnify, defend and hold harmless each
director, officer or employee of the BANK Companies (an “Indemnified Party”)
against all liabilities arising out of actions or omissions occurring upon
or
prior to the Effective Time (including, without limitation, the transactions
contemplated by this Agreement) to the maximum extent authorized under the
articles of incorporation and bylaws of BANK as in effect on the date of this
Agreement, subject to the limitations and requirements of such articles of
incorporation and bylaws and applicable Law, including, without limitation,
Section 607.0850 of the FBCA. From and after the Effective Time, TIB shall
indemnify, defend and hold harmless each Indemnified Party against all
liabilities arising out of actions or omissions occurring upon or prior to
the
Effective time (including without limitation the transactions contemplated
by
this Agreement) to the extent mandated under the articles of incorporation
and
bylaws of the BANK as in effect on the date of this Agreement subject to the
limitations of applicable Law, including, without limitation, Section 607.0850
of the FBCA.
(b) Any
Indemnified Party wishing to claim indemnification under Section 8.17(a) above
upon learning of any such liability or litigation, shall promptly notify TIB
thereof. In the event of any such litigation (whether arising before or after
the Effective Time), (i) TIB shall have the right to assume the defense
thereof, and TIB 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
TIB
elects not to assume such defense or counsel for the Indemnified Parties advises
that there are substantive issues which raise conflicts of interest between
TIB
and the Indemnified Parties, the Indemnified Parties may retain counsel
satisfactory to them, and TIB shall pay all reasonable fees and expenses of
such
counsel for the Indemnified Parties; provided, that TIB shall be obligated
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) TIB shall not be liable for any settlement
effected without its prior written consent; and provided further, that TIB
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
provided for herein is prohibited by applicable Law.
(c) TIB
shall
use commercially reasonable efforts to cause the individuals serving as officers
and directors of BANK or any BANK Companies immediately prior to the Effective
Time to be covered for a period of three (3) years from the Effective Time
by
the directors’ and officers’ liability insurance policy maintained by BANK
(provided that TIB may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions that are not less
advantageous than such policy) with respect to acts or omissions occurring
prior
to the Effective Time that were committed (or omitted, as the case may be)
by
such officers and directors in their respective capacities as such.
Notwithstanding the foregoing, TIB shall not be obligated to maintain any such
policy to the extent that the premiums for the ensuing period exceeds by more
than 10% the premium for the prior period. If TIB or any of its successors
or
assigns shall consolidate with or merge into any other entity and shall not
be
the continuing or surviving entity in such consolidation or merger or shall
transfer all or substantially all of its assets to any Person, then, in such
case, proper provision shall be made so that the successors or assigns of TIB
shall assume the obligations set forth in this Section 8.17. The provisions
of
this Section 8.17 shall survive the Effective Time and are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party and his
or
her heirs and representatives.
8.18 Employee
Matters.
(a) From
and
after the Effective Time and except for any salary continuation agreements
that
the BANK has entered into with any of its employees, TIB shall provide the
employees of the BANK Companies as of the Effective Time (the “Covered
Employees”) with employee benefits and compensation plans, programs and
arrangements that are substantially equivalent to those provided to similarly
situated employees of the TIB Companies.
(b) From
and
after the Effective Time, TIB
shall
(i) provide all Covered Employees service credit for purposes of eligibility,
participation, vesting and levels of benefits (excluding benefit accruals under
any defined benefit pension plan), under any employee benefit or compensation
plan, program or arrangement adopted, maintained or contributed to by any of
the
TIB Companies in which Covered Employees are eligible to participate, for all
periods of employment with any BANK Companies prior to the Effective Time,
(ii)
use its best efforts to cause any pre-existing conditions or limitations,
eligibility waiting periods or required physical examinations under any welfare
benefit plans of any of the TIB Companies to be waived with respect to the
Covered Employees and their eligible dependents, to the extent waived under
the
corresponding plan in which the applicable Covered Employee participated
immediately prior to the Effective Time and, with respect to life insurance
coverage, up to the Covered Employee’s current level of insurability, and (iii)
give the Covered Employees and their eligible dependents credit for the plan
year in which the Effective Time (or commencement of participation in a plan
of
any of the TIB Companies) occurs towards applicable deductibles and annual
out-of-pocket limits for expenses incurred prior to the Effective Time (or
the
date of commencement of participation in a plan of any of the TIB
Companies).
(c) From
and
after the Effective Time, TIB
shall
honor all accrued and vested benefit obligations to and contractual rights
of
current and former employees of any BANK Companies under the BANK benefit
plans.
(d) If,
within six (6) months after the Effective Time, the employment of any employee
of BANK is terminated solely as a result of the Merger (i.e.,
including, for example, as a result of the elimination of duplicative jobs,
etc.), and not as a result of inadequate performance or other good cause, TIB
will pay severance to each such employee in an amount equal to one week’s pay
for each six (6) months of such employee’s prior employment; provided,
however,
that in
no event will the total amount of severance for any single employee exceed
$10,000 in the aggregate, other than payments pursuant to any change in control
agreement between BANK and any of its officers in effect at the date of this
Agreement.
ARTICLE
9
CONDITIONS
PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 Conditions
to Obligations of Each Party.
The
respective obligations of each of TIB, TIB-SUB and BANK to perform this
Agreement and consummate the Merger and the other transactions provided for
herein are subject to the satisfaction of the following conditions, unless
waived by both Parties pursuant to Section 11.4 of this Agreement:
(a) Stockholder
Approval.
The stockholders of BANK shall have approved this Agreement by the requisite
vote, and the consummation of the transactions provided for herein, as and
to
the extent required by Law and by the provisions of any governing instruments,
and BANK shall have furnished to TIB certified copies of resolutions duly
adopted by its stockholders evidencing same. In addition, TIB, as the sole
stockholder of TIB-SUB, shall have approved this Agreement and the consummation
of the transactions provided for herein, as and to the extent required by Law
and by the provisions of any governing instruments.
(b) Regulatory
Approvals.
All Consents of, filings and registrations with, and notifications to, all
Regulatory Authorities required for consummation of the Merger and the
Subsidiary Merger shall have been obtained or made and shall be in full force
and effect and all notice and waiting periods required by Law to have passed
after receipt of such Consents shall have expired. No Consent obtained from
any
Regulatory Authority that is necessary to consummate the transactions provided
for herein shall be conditioned or restricted in a manner (including without
limitation requirements relating to the raising of additional capital or the
disposition of Assets) which in the reasonable judgment of the Board of
Directors of either Party would so materially adversely impact the economic
or
business benefits of the transactions provided for in this Agreement as to
render inadvisable the consummation of the Merger or the Subsidiary Merger.
(c) Consents
and Approvals.
Each of TIB, TIB-SUB and BANK shall have obtained any and all Consents required
for consummation of the Merger (other than those referred to in Section 9.1(b)
of this Agreement) 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 Material Adverse Effect on such party.
No Consent so obtained which is necessary to consummate the transactions
provided for herein shall be conditioned or restricted in a manner which in
the
reasonable judgment of the Board of Directors of either Party would so
materially adversely impact the economic or business benefits of the
transactions contemplated by this Agreement as to render inadvisable the
consummation of the Merger.
(d) Legal
Proceedings.
No court 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 that prohibits, restricts
or
makes illegal consummation of the transactions provided for in this Agreement.
No action or proceeding shall have been instituted by any Person, and the
Parties shall not have Knowledge of any threatened action or proceeding by
any
Person, which seeks to restrain the consummation of the transactions provided
for in this Agreement which, in the opinion of the TIB Board or the BANK Board,
renders it impossible or inadvisable to consummate the transactions provided
for
in this Agreement.
(e) Tax
Opinion.
BANK and TIB shall have received a written opinion in form reasonably
satisfactory to them (the “Tax Opinion”), to the effect that (i) the Merger
will constitute a reorganization within the meaning of Section 368(a) of the
IRC, (ii) the exchange in the Merger of BANK Common Stock for TIB Common
Stock will not give rise to gain or loss to the stockholders of BANK with
respect to such exchange (except to the extent of any cash received), and
(iii) neither BANK nor TIB will recognize gain or loss as a consequence of
the Merger (except for income and deferred gain recognized pursuant to Treasury
regulations issued under Section 1502 of the IRC). The firm rendering such
Tax
Opinion shall be entitled to rely upon representations of officers of BANK
and
TIB reasonably satisfactory in form and substance to such counsel.
(f) S-4
Registration Statement Effective.
The S-4 Registration Statement shall have been declared effective under the
1933
Act by the SEC and no stop order suspending the effectiveness of the S-4
Registration Statement shall have been issued and no action, suit, proceeding
or
investigation for that purpose shall have been initiated or threatened by the
SEC.
9.2 Conditions
to Obligations of TIB and TIB-SUB.
The
obligations of TIB and TIB-SUB to perform this Agreement and consummate the
Merger and the other transactions provided for herein are subject to the
satisfaction of the following conditions, unless waived by TIB pursuant to
subsection 11.4(a) of this Agreement:
(a) Representations
and Warranties.
The representations and warranties of BANK set forth or referred to in this
Agreement and in any certificate or document delivered pursuant to the
provisions hereof shall be true and correct in all material respects 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), except as expressly
contemplated by this Agreement.
(b) Performance
of Obligations.
Each and all of the agreements, obligations and covenants of BANK to be
performed and complied with pursuant to this Agreement and the other agreements
provided for herein prior to the Effective Time shall have been duly performed
and complied with in all material respects.
(c) Certificates.
BANK shall have delivered to TIB (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 to TIB’s obligations
set forth in subsections 9.2(a) and 9.2(b) of this Agreement have been
satisfied, and (ii) certified copies of resolutions duly adopted by the
BANK Board and the BANK stockholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery and performance of this
Agreement, and the consummation of the transactions provided for herein, all
in
such reasonable detail as TIB and its counsel shall request.
(d) Opinion
of Counsel.
BANK shall have delivered to TIB an opinion of Xxxxxx & Xxxxx LLP, counsel
to BANK, dated as of the Closing, in such form as shall be mutually agreed
upon.
(e) Net
Worth and Capital Requirements.
Immediately prior to the Effective Time, BANK shall have a minimum net worth
of
$8,430,000. For purposes of this Section 9.2(e), “net worth” shall mean, without
regard to the Conforming Adjustments and the expenses relating to this Agreement
and the transactions contemplated by this Agreement, the sum of the amounts
set
forth on the balance sheet as stockholders’ equity (including the par or stated
value of all outstanding capital stock, retained earnings, additional paid-in
capital, capital surplus and earned surplus, each as determined in accordance
with GAAP), less any amounts due from or owed by any Subsidiary thereof;
provided,
however,
that
any unrealized gains or losses on securities classified as “available for sale”
shall be disregarded for purposes of calculating “net worth.”
(f) Annual
Audit; Comfort Letter.
TIB shall have received (i) the audited financial statements of the BANK as
of
and for the year ended December 31, 2006, which financial statements shall
also
contain an unqualified opinion thereon by Hacker, Xxxxxxx & Xxxxx, P.A., and
(ii) from Hacker, Xxxxxxx & Xxxxx, P.A., independent certified public
accountants, a comfort letter dated as of the Effective Time with respect to
such matters relating to the financial condition of BANK as TIB may reasonably
request.
(g) Conforming
Adjustments.
The Conforming Adjustments shall have been made to the satisfaction of TIB
in
its sole discretion.
(h) Matters
Relating to 280G Taxes.
TIB
shall
be satisfied in its sole discretion, either through mutually agreeable
pre-Closing amendments or otherwise, that BANK shall have taken any and all
reasonably necessary steps such that the Merger will not trigger any “excess
parachute payment” (as defined in Section 280G of the IRC) under any Employment
Agreements, Change in Control Agreements, BANK Benefit Plans, or similar
arrangements between a BANK Company and any officers, directors, or employees
thereof.
(i) Matters
Relating to Change in Ownership Agreements.
(i) TIB
shall have received documentation reasonably satisfactory to TIB that any change
in control agreements between BANK and any of its officers shall be terminated
as of the Effective Time on terms satisfactory to TIB, BANK and the officers
who
are parties to such agreements, pursuant to agreements in substantially the
form
of Exhibit E, and (ii) each of Xxxxx X. Xxxxx and Xxxx Xxxxxx shall have entered
into employment agreements with TIB and BANK, pursuant to agreements in
substantially the form of Exhibit F.
(j) Regulatory
Matters.
No
agency or department of federal, state or local government or any Regulatory
Authority or the staff thereof shall have (i) asserted that any BANK
Company is not in material compliance with any of the Laws or Orders that such
governmental authority or Regulatory Authority enforces, (ii) revoked any
material Permits, or (iii) issued, or required any BANK Company to consent
to the issuance or adoption of, a cease and desist order, formal agreement,
directive, commitment or memorandum of understanding, or any board resolution
or
similar undertaking, that, in the reasonable estimation of TIB, restricts or
impairs the conduct of such BANK Company’s business or future prospects.
(k) Absence
of Adverse Facts.
There shall have been no determination by TIB in good faith that any fact,
event
or condition exists or has occurred that, in the judgment of TIB, (a) would
have
a Material Adverse Effect on, or which may be foreseen to have a Material
Adverse Effect on, BANK or the consummation of the transactions provided for
in
this Agreement, (b) would be of such significance with respect to the business
or economic benefits expected to be obtained by TIB pursuant to this Agreement
as to render inadvisable the consummation of the transactions pursuant to this
Agreement, (c) would be materially adverse to the interests of TIB on a
consolidated basis or (d) would render the Merger or the other transactions
provided for in this Agreement impractical because of any state of war, national
emergency, banking moratorium or general suspension of trading on NASDAQ, the
New York Stock Exchange, Inc. or other national securities exchange.
(l) Consents
Under Agreements.
BANK shall have obtained all consents or approvals of each Person (other than
the Consents of the Regulatory Authorities) whose consent or approval shall
be
required in order to permit the succession by the Surviving Bank to, or the
continuation by BANK or any other BANK Subsidiary of, as the case may be, any
obligation, right or interest of BANK or such BANK Subsidiary under any loan
or
credit agreement, note, mortgage, indenture, lease, license, Contract or other
agreement or instrument, except those for which failure to obtain such consents
and approvals would not in the reasonable opinion of TIB, individually or in
the
aggregate, have a Material Adverse Effect on the Surviving Bank and BANK or
the
BANK Subsidiary at issue or upon consummation of the transactions provided
for
in this Agreement.
(m) Material
Condition.
There shall not be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the Merger by any Regulatory
Authority which, in connection with the grant of any Consent by any Regulatory
Authority, imposes, in the judgment of TIB, any material adverse requirement
upon TIB or any TIB Subsidiary, including without limitation any requirement
that TIB sell or dispose of any significant amount of the assets of BANK and
its
Subsidiaries, or any other TIB Subsidiary, provided that, except for any such
requirement relating to the above-described sale or disposition of any
significant assets of BANK or any TIB Subsidiary, no such term or condition
imposed by any Regulatory Authority in connection with the grant of any Consent
by any Regulatory Authority shall be deemed to be a material adverse requirement
unless it materially differs from terms and conditions customarily imposed
by
any such entity in connection with the acquisition of banks, savings
associations and bank and savings association holding companies under similar
circumstances.
(n) Certification
of Claims.
BANK shall have delivered a certificate to TIB that BANK is not aware of any
pending, threatened or potential claim against the directors or officers of
BANK
or under the directors and officers insurance policy or the fidelity bond
coverage of BANK or any BANK Company.
(o) Loan
Portfolio.
There
shall not have been an increase by more than one-half (1/2) percent of BANK’s
gross loans on the date of this Agreement in the aggregate volume of Loans
described in Schedule
5.9(a).
(p) Loan
Allowance.
Immediately prior to the Effective Time, BANK shall have a minimum allowance
for
loan losses, as determined in accordance with GAAP shall not be less than the
greater of $644,000 or 1.125% of the total BANK loans outstanding as set forth
on the balance sheet of the BANK.
9.3 Conditions
to Obligations of BANK.
The
obligations of BANK to perform this Agreement and consummate the Merger and
the
other transactions provided for herein are subject to the satisfaction of the
following conditions, unless waived by BANK pursuant to subsection 11.4(b)
of
this Agreement:
(a) Representations
and Warranties.
The
representations and warranties of TIB set forth or referred to in this Agreement
and in any certificate of document delivered pursuant to the provisions hereof
shall be true and correct in all material respects 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), except as expressly contemplated by
this
Agreement.
(b) Performance
of Obligations.
Each
and all of the agreements, obligations and covenants of TIB to be performed
and
complied with pursuant to this Agreement and the other agreements provided
for
herein prior to the Effective Time shall have been duly performed and complied
with in all material respects.
(c) Certificates.
TIB
shall have delivered to BANK (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 to BANK’s obligations set
forth in subsections 9.3(a) and 9.3(b) of this Agreement have been satisfied,
and (ii) certified copies of resolutions duly adopted by the TIB Board
evidencing the taking of all corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and the consummation
of
the transactions provided for herein, all in such reasonable detail as BANK
and
its counsel shall request.
(d) Opinion
of Counsel.
TIB
shall have delivered to BANK an opinion of Xxxxx Xxxxxxxxx, P.A., counsel to
TIB, dated as of the Effective Time, in such form as shall be mutually agreed
upon.
(e) TIB
Common Stock.
The TIB
Common Stock to be issued in the Merger shall have been qualified as a NASDAQ
“national market system security” pursuant to Section 7.7 hereof.
(f) Regulatory
Matters.
No
agency or department of federal, state or local government, or any Regulatory
Authority or the staff thereof shall have (i) asserted that any TIB Company
is not in material compliance with any of the Laws or Orders that such
governmental authority or Regulatory Authority enforces, or (ii) issued, or
required any TIB Company to consent to the issuance or adoption of, a cease
and
desist order, formal agreement, directive, commitment or memorandum of
understanding, or any board resolution or similar undertaking that, in the
reasonable estimation of BANK, restricts or impairs the conduct of such TIB
Company’s business or future prospects. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities required
for consummation of the Subsidiary Merger shall have been obtained or made
and
shall be in full force and effect and all notice and waiting periods required
by
Law to have passed after receipt of such Consents shall have expired.
ARTICLE
10
TERMINATION
10.1 Termination.
Notwithstanding any other provision of this Agreement, and notwithstanding
the
approval of this Agreement by the stockholders of BANK, this Agreement may
be
terminated and the Merger abandoned at any time prior to the Effective
Time:
(a) by
mutual
written consent of the TIB Board and the BANK Board; or
(b) by
the
TIB Board or the BANK Board in the event of an inaccuracy of any representation
or warranty contained in this Agreement which cannot be or has not been cured
within thirty (30) days after the giving of written notice to the breaching
Party of such inaccuracy and which inaccuracy is reasonably likely, in the
opinion of the non-breaching Party, to have, individually or in the aggregate,
a
Material Adverse Effect on the breaching Party; or
(c) by
the
TIB Board or the BANK Board in the event of a material breach by the other
Party
of any covenant, agreement or other obligation contained in this Agreement
which
cannot be or has not been cured within thirty (30) days after the giving of
written notice to the breaching Party of such breach; or
(d) by
the
TIB Board or the BANK Board (provided that the terminating Party is not then
in
material breach of any representation, warranty, covenant, agreement or other
obligation contained in this Agreement) if (i) any Consent of any
Regulatory Authority required for consummation of the Merger and the other
transactions provided for herein 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 stockholders of BANK
fail to vote their approval of this Agreement and the transactions provided
for
herein as required by applicable Law at its Stockholders’ Meeting where the
transactions are presented to such BANK stockholders for approval and voted
upon; or
(e) by
the
TIB Board, if, notwithstanding any disclosures in the Schedules attached hereto
or otherwise, (i) there shall have occurred any Material Adverse Effect
with respect to BANK, or (ii) any facts or circumstances shall develop or
arise after the date of this Agreement which are reasonably likely to cause
or
result in any Material Adverse Effect with respect to BANK, and such Material
Adverse Effect (or such facts or circumstances) shall not have been remedied
within fifteen (15) days after receipt by BANK of notice in writing from TIB
specifying the nature of such Material Adverse Effect and requesting that it
be
remedied; or
(f) by
the
BANK Board, if (i) there shall have occurred any Material Adverse Effect
with respect to TIB, or (ii) any facts or circumstances shall develop or
arise after the date of this Agreement which are reasonably likely to cause
or
result in any Material Adverse Effect with respect to TIB, and such Material
Adverse Effect (or such facts or circumstances) shall not have been remedied
within fifteen (15) days after receipt by TIB of notice in writing from BANK
specifying the nature of such Material Adverse Effect and requesting that it
be
remedied; or
(g) by
the
TIB Board or the BANK Board if the Merger shall not have been consummated by
June 30, 2007, if the failure to consummate the transactions provided for herein
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(g); or
(h) by
the
TIB Board or the BANK Board if 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(g) of this Agreement and such
failure was not the fault of the terminating Party; or
(i) by
the
TIB Board if the holders of in excess of ten percent (10%) of the outstanding
shares of BANK Common Stock properly assert their dissenters’ rights of
appraisal pursuant to the Dissenter Provisions; or
(j) by
the
TIB Board if (i) the BANK Board shall have withdrawn, or adversely modified,
or
failed upon TIB’s request to reconfirm its recommendation of the Merger or this
Agreement, (ii) the BANK Board shall have approved or recommended to the
stockholders of BANK that they approve an Acquisition Proposal other than that
contemplated by this Agreement, (iii) BANK fails to call the BANK Stockholders’
Meeting or otherwise breaches its obligations in Section 8.4 hereof, or
(iv) any Person (other than BANK or an Affiliate of BANK) or group becomes
the beneficial owner of 50% or more of the outstanding shares of BANK Common
Stock; or
(k) by
the
BANK Board if (i) the BANK Board authorizes BANK, subject to complying with
the
terms of this Agreement, to enter into a definitive agreement concerning a
transaction that constitutes a Superior Proposal and BANK notifies TIB in
writing that it intends to enter into such an agreement, (ii) TIB does not
make,
within 3 business days of the receipt of BANK’s written notification of its
intent to enter into a definitive agreement for a Superior Proposal, an offer
that the BANK Board determines, in good faith after consultation with its
financial advisors, is at least as favorable, in the aggregate, to the
stockholders of BANK as the Superior Proposal, and (iii) BANK makes the
payment required by Section 10.2(b). BANK agrees (x) that it will not enter
into
a definitive agreement referred to in clause (i) above until at least the fifth
business day after it has provided the notice to TIB required thereby, and
(y)
to notify TIB promptly in writing if its intention to enter into a definitive
agreement referred to in its notification shall change at any time after giving
such notification.
(l) By
TIB,
if it determines, upon written notice to BANK prior to the close of business
five (5) business days after the Determination Date, if the Average Quoted
Price
shall be greater than $20.00 or by BANK if it determines, upon written notice
to
TIB prior to the close of business five (5) business days after the
Determination Date, if the Average Quoted Price shall be less than $15.00.
Notwithstanding the foregoing, TIB’s right to terminate this Agreement if the
Average Quoted Price is in excess of $20.00 shall not be applicable if prior
to
the Effective Time TIB enters into an agreement or makes any public announcement
with respect to a proposed transaction: (i) in which TIB would not be the
surviving entity, (ii) as a result of which any Person or Group would become
the
beneficial owner of fifty percent (50%) or more of the outstanding shares of
TIB
Common Stock, or (iii) in connection with which TIB Common Stock would be
converted into cash or some other security, in which case the Exchange Ratio
shall remain fixed at 0.9730 unless the Average Quoted Price is less than
$18.50, in which case the Exchange Ratio shall be determined in accordance
with
Section 3.1(b) of this Agreement.
10.2 Effect
of Termination.
(a) In
the
event of a termination of this Agreement by either the TIB Board or the BANK
Board as provided in Section 10.1, this Agreement shall become void and there
shall be no Liability or obligation on the part of TIB or BANK or their
respective officers or directors, except that this Section 10.2 and Article
11
and Sections 8.2 and 8.7 of this Agreement shall survive any such termination;
provided,
however,
that
nothing herein shall relieve any breaching Party from Liability for an uncured
willful or breach of a representation, warranty, covenant, obligation or
agreement giving rise to such termination.
(b) In
the
even that this Agreement is terminated (i) by the TIB Board pursuant to
Section 10.1(j), (ii) by the BANK Board pursuant to Section 10.1(k), or
(iii) otherwise by the BANK Board at a time when the TIB Board has grounds
to
terminate the Agreement pursuant to Section 10.1(j), then BANK shall, in the
case of clause (i), two business days after the date of such termination
or, in the case of clause (ii) or (iii), on the date of such termination, pay
to
TIB, by wire transfer of immediately available funds, the amount of $800,000
(the “Termination Fee”).
(c) In
the
event that (i) after the date hereof an Acquisition Proposal shall have been
publicly disclosed or any Person shall have publicly disclosed that, subject
to
the Merger being disapproved by BANK stockholders or otherwise rejected, it
will
make an Acquisition Proposal with respect to BANK and thereafter this Agreement
is terminated by the TIB Board or the BANK Board pursuant to Section
10.1(d)(ii), and (ii) concurrently with such termination or within nine months
of such termination BANK enters into a definitive agreement with respect to
an
Acquisition Proposal or consummates an Acquisition Proposal with that same
Person, then BANK shall, upon the earlier of entering into a definitive
agreement with respect to an Acquisition Proposal or consummating an Acquisition
Proposal, pay to TIB, by wire transfer of immediately available funds, the
Termination Fee. For purposes of this Section 10.2(c) the references to “more
than 15%” in the definition of Acquisition Proposal shall be deemed to be
references to “a majority.”
(d) BANK
acknowledges that the agreements contained in Sections 10.2(b) and 10.2(c)
are
an integral part of the transactions provided for in this Agreement, and that,
without these agreements, TIB would not enter into this Agreement; accordingly,
if BANK fails to promptly pay the amount due pursuant to Section 10.2(b) or
Section 10.2(c), as the case may be, and, in order to obtain such payment,
TIB
commences a suit which results in a judgment for any of the Termination Fee,
BANK shall pay TIB its costs and expenses (including attorneys’ fees) in
connection with such suit.
10.3 Non-Survival
of Representations and Covenants.
The
respective representations, warranties, obligations, covenants and agreements
of
the parties hereto shall not survive the Effective Time, except for those
covenants and agreements contained herein which by their terms apply in whole
or
in part after the Effective Time.
ARTICLE
11
MISCELLANEOUS
11.1 Definitions.
Except as otherwise provided herein, the capitalized terms set forth below
(in
their singular and plural forms as applicable) shall have the following
meanings:
“Acquisition
Agreement” shall
have the meaning provided in Section 7.6(a) of this Agreement.
“Acquisition
Proposal,”
with
respect to BANK, means a tender or exchange offer, proposal for a merger,
acquisition of all the stock or Assets of, consolidation or other business
combination involving BANK or any of its Subsidiaries or any proposal or offer
to acquire in any manner more than 15% of the voting power in, or more than
15%
of the business, Assets or deposits of, BANK or any of its Subsidiaries,
including a plan of liquidation of BANK or any of its Subsidiaries, other than
the transactions contemplated by this Agreement.
“Act”
shall
mean the Federal Deposit Insurance Act.
“1933
Act”
shall
mean the Securities Act of 1933, as amended.
“1934
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Advisory
Fee”
shall
have the meaning provided in Section 5.24 of this Agreement.
“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 and Schedules
delivered pursuant hereto and incorporated herein by reference. References
to
“the date of this Agreement,” “the date hereof” and words of similar import
shall refer to the date this Agreement was first executed, as indicated in
the
introductory paragraph on the first page hereof.
“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 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.
“Average
Quoted Price”
shall
mean the price derived by the averages of the closing sales price of the shares
of TIB Common Stock as reported on NASDAQ on each of the ten (10) consecutive
trading days ending on the fifth business day preceding the Determination
Date.
“BANK”
shall
mean The Bank of Venice, a Florida state bank.
“BANK
Allowance”
shall
have the meaning provided for in Section 5.9(a) of this Agreement.
“BANK
Benefit Plans”
shall
have the meaning set forth in Section 5.14(a) of this Agreement.
“BANK
Board”
shall
mean the Board of Directors of BANK.
“BANK
Call Reports”
shall
mean (i) the Reports of Income and Condition of BANK for the years ended
December 31, 2005 and 2004, as filed with the FDIC; and (ii) the
Reports of Income and Condition of BANK filed by BANK with respect to periods
ended subsequent to December 31, 2005.
“BANK
Certificate”
shall
have the meaning provided in Section 4.2 of this Agreement.
“BANK
Common Stock”
shall
mean the $5.00 par value voting common stock of BANK.
“BANK
Companies”
shall
mean, collectively, BANK and all BANK Subsidiaries.
“BANK
Contracts”
shall
have the meaning set forth in Section 5.15 of this Agreement.
“BANK
ERISA Plans”
shall
have the meaning set forth in Section 5.14(a) of this Agreement.
“BANK
Financial Advisor”
shall
have the meaning set forth in Section 8.9 of this Agreement.
“BANK
Financial Statements”
shall
mean shall mean (i) the audited balance sheets (including related notes and
schedules, if any) of BANK as of December 31, 2005, 2004 and 2003, and the
related statements of income, changes in stockholders’ equity and cash flows
(including related notes and schedules, if any) for the years then ended,
together with the report thereon of Hacker, Xxxxxxx & Xxxxx, P.A.,
independent certified public accountants, and (ii) the unaudited balance
sheets of BANK (including related notes and schedules, if any) and related
statements of income, changes in stockholders’ equity and cash flows (including
related notes and schedules, if any) with respect to periods ended subsequent
to
December 31, 2005.
“BANK
Option”
shall
have the meaning provided in Section 3.1(d) of this Agreement.
“BANK
Pension Plan”
shall
have the meaning set forth in Section 5.14(a) of this Agreement.
“BANK
Stock Option Plans”
shall
mean the The Bank of Venice Officers’ and Employees’ Stock Option Plan and the
The Bank of Venice Directors’ Stock Option Plan.
“BANK
Stockholders’ Meeting”
shall
mean the meeting of the stockholders of BANK to be held pursuant to Section
8.4
of this Agreement, including any adjournment or adjournments
thereof.
“BANK
Subsidiaries”
shall
mean the Subsidiaries of BANK, which shall include the BANK Subsidiaries
described in Section 5.4 of this Agreement and any corporation, bank, savings
association or other organization acquired as a Subsidiary of BANK in the future
and owned by BANK at the Effective Time.
“BHC
Act”
shall
mean the federal Bank Holding Company Act of 1956, as amended.
“Cash
Election Shares”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“Certificate
of Objections”
shall
have the meaning provided in Section 8.5 of this Agreement.
“Closing”
shall
mean the closing of the Merger and the other transactions provided for herein,
as described in Section 1.2 of this Agreement.
“Conforming
Adjustments”
shall
have the meaning provided in Section 8.14 of this Agreement.
“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, debenture, instrument, trust agreement, guarantee, 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.
“Cutoff”
shall
have the meaning provided in Section 4.2 of this Agreement.
“Default”
shall
mean (i) any breach or violation of or default under any Contract, 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 or
default under any Contract, 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 to terminate or revoke, change the current terms of, or
renegotiate, or to accelerate, increase, or impose any Liability under, any
Contract, Order or Permit, where, in any such event, such Default is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect
on a
Party.
“Designated
Representative”
(a) with
respect to BANK shall mean Xxxxx X. Xxxxx and/or Xxxx Xxxxxx; and
(b) with
respect to TIB shall mean Xxxxxx X. Xxxx, and/or Xxxxxxx X.
Xxxxxxxx.
“Determination
Date” shall
mean the date on which the last of the following occurs: (i) the effective
date
(including expiration of any applicable waiting period required by Law) of
the
last required Consent of any Regulatory Authority having authority over and
approving or exempting the Merger, (ii) the date on which the shareholders
of
BANK approved this Agreement to the extent that such approval is required by
applicable Law, and (iii) February 28, 2007.
“Dissenter
Provisions”
shall
have the meaning provided in Section 3.4 of this Agreement.
“Dissenting
BANK Shares”
shall
have the meaning provided in Section 3.4 of this Agreement.
“Dissenting
Stockholder”
shall
have the meaning provided in Section 3.4 of this Agreement.
“Effective
Time”
shall
mean the date and time at which the Merger becomes effective as provided in
Section 1.3 of this Agreement.
“Election
Deadline”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“Election
Form”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“Employment
Laws” shall
mean all Laws relating to employment, equal employment opportunity,
nondiscrimination, immigration, wages, unemployment wages, hours, benefits,
collective bargaining, the payment of social security and similar taxes,
occupational safety and health and plant closing, including, but not limited
to,
42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Equal
Pay Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the
Americans with Disabilities Act, Workers’ Compensation, Uniformed Services
Employment and Re-Employment Rights Act of 1994, Older Workers Benefit
Protection Act, Pregnancy Discrimination Act and the Worker Adjustment and
Retraining Notification Act.
“Environmental
Laws”
shall
mean all Laws which are administered, interpreted or enforced by the United
States Environmental Protection Agency and state and local agencies with
jurisdiction over pollution or protection of the environment.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as
amended.
“ERISA
Affiliate”
shall
have the meaning provided in Section 5.14(c) of this Agreement.
“Exchange
Agent”
shall
mean American Stock Transfer & Trust Company.
“Exchange
Ratio”
shall
have the meaning given such term in Section 3.1(b) hereof.
“FBCA”
shall
mean the Florida Business Corporation Act, as amended.
“FDIC”
shall
mean the Federal Deposit Insurance Corporation.
“FFIC”
shall
mean the Florida Financial Institutions Code.
“FRB”
or
“Federal
Reserve Board”
shall
mean Board of Governors of the Federal Reserve System.
“GAAP”
shall
mean generally accepted accounting principles, consistently applied during
the
periods involved.
“Hazardous
Material”
shall
mean any pollutant, contaminant, or hazardous substance within the meaning
of
the Comprehensive Environment Response, Compensation, and Liability Act, 42
U.S.C. § 9601 et
seq.,
or any
similar federal, state or local Law.
“Indemnified
Party” shall
have the meaning provided in Section 8.17(a) of this Agreement.
“IRC”
shall
mean the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
“Knowledge”
as used
with respect to a Party shall mean the actual knowledge of the officers and
directors of such Party and that knowledge that any director of the Party would
have obtained upon a reasonable examination of the books, records and accounts
of such Party and that knowledge that any officer of the Party would have
obtained upon a reasonable examination of the books, records and accounts of
such officer and such Party.
“Law”
shall
mean any code, law, ordinance, regulation, reporting or licensing requirement,
rule, or statute applicable to a Person or its Assets, Liabilities or business,
including without limitation those promulgated, interpreted or enforced by
any
of the Regulatory Authorities.
“Liability”
shall
mean any direct or indirect, primary or secondary, liability, indebtedness,
obligation, penalty, cost or expense (including without limitation 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 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, and
(ii) Liens which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on a Party.
“Litigation”
shall
mean any action, arbitration, cause of action, claim, complaint, criminal
prosecution, demand letter, governmental or other examination or investigation,
hearing, inquiry, administrative or other proceeding or notice (written or
oral)
by any Person alleging potential Liability or requesting information relating
to
or affecting a Party, its business, its Assets (including without limitation
Contracts related to it), or the transactions provided for in this Agreement,
but shall not include regular, periodic examinations of depository institutions
and their Affiliates by Regulatory Authorities.
“Litigation
Reserve”
shall
have the meaning set forth in Section 5.9(a) of this Agreement.
“Loan
Property”
shall
mean any property owned by a Party in question or by any of its Subsidiaries
or
in which such Party or Subsidiary holds a security interest, and, where required
by the context, includes the owner or operator of such property, but only with
respect to such property.
“Loans”
shall
have the meaning set forth in Section 5.9(a) of this Agreement.
“Mailing
Date”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“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.
“Material
Adverse Effect”
on a
Party shall mean an event, change or occurrence that, individually or together
with any other event, change or occurrence, has a material adverse impact on
(i) the financial position, results of operations or business of such Party
and its Subsidiaries, taken as a whole, or (ii) the ability of such Party
to perform its obligations under this Agreement or to consummate the Merger
or
the other transactions provided for in this Agreement; provided that “material
adverse impact” shall not be deemed to include the impact of (x) changes in
banking and similar Laws of general applicability or interpretations thereof
by
courts of governmental authorities, (y) changes in generally accepted
accounting principles or regulatory accounting principles generally applicable
to banks and their holding companies and (z) the Merger or the announcement
of the Merger on the operating performance of the Parties.
“Maximum
Cash Amount”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“Merger”
shall
mean the merger of BANK with and into TIB-SUB referred to in the Preamble of
this Agreement.
“NASD”
shall
mean the National Association of Securities Dealers, Inc.
“NASDAQ”
shall
mean the National Market System of the National Association of Securities
Dealers Automated Quotations System.
“Net
Income Per Share Amount”
shall
mean the amount equal to the quotient obtained by dividing (i) the net income
of
the BANK from July 1, 2006 until the end of the calendar month immediately
preceding the latter of (x) the Effective Time or (y) February 28, 2007,
calculated in accordance with GAAP (except that any expenses relating to this
Agreement and the transactions contemplated by this Agreement and all Conforming
Adjustments shall be excluded from such calculation), and as such calculation
of
net income shall be mutually agreed upon by the BANK and TIB, by (ii) the number
of shares of BANK Common Stock issued and outstanding immediately prior to
the
Effective Time.
“No
Election Shares”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“OCC”
shall
mean the Office of the Comptroller of the Currency.
“Order”
shall
mean any administrative decision or award, decrees, 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.
“OREO
Reserve”
shall
have the meaning set forth in Section 5.9(a) of this Agreement.
“Participation
Facility”
shall
mean any facility in which the Party in question or any of its Subsidiaries
participates in the management and, where required by the context, includes
the
owner or operator or such property, but only with respect to such
property.
“Party”
shall
mean either BANK or TIB, and “Parties” shall mean both BANK and
TIB.
“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.
“Per
Share Cash Consideration” shall
have the meaning provided in Section 3.1(c) of this Agreement.
“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.
“Potential
Cash Payments”
shall
have the meaning provided in Section 3.1(c) of this Agreement.
“Proxy
Statement/Prospectus”
shall
have the meaning set forth in Section 5.18 of this Agreement.
“Regulatory
Authorities”
shall
mean, collectively, the Federal Trade Commission, the United States Department
of Justice, the FRB, the OCC, the FDIC, all state regulatory agencies having
jurisdiction over the Parties and their respective Subsidiaries, the NASD and
the SEC.
“Related
Interest”
shall
have the meaning set forth in Section 5.15 of this Agreement.
“S-4
Registration Statement”
shall
have the meaning set forth in Section 5.18 of this Agreement.
“SEC”
shall
mean the United States Securities and Exchange Commission.
“Securities
Laws”
shall
mean the 1933 Act, the 1934 Act, the Investment Company Act of 1940 as amended,
the Investment Advisers Act of 1940, as amended, the Trust Indenture Act of
1939, as amended, and the rules and regulations of any Regulatory Authority
promulgated thereunder.
“Subsidiaries”
shall
mean all those corporations, banks, associations or other entities of which
the
entity in question 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,
however,
there
shall not be included any such entity acquired through foreclosure or any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity.
“Superior
Proposal”
means a
bona fide written Acquisition Proposal which the BANK Board concludes in good
faith to be more favorable from a financial point of view to its stockholders
than the Merger and the other transactions contemplated hereby, (1) after
receiving the advice of its legal and financial advisors (who shall be a
nationally recognized investment banking firm, TIB agreeing that the BANK
Financial Advisor is a nationally recognized investment banking firm), (2)
after
taking into account the likelihood of consummation of such transaction on the
terms set forth therein (as compared to, and with due regard for, the terms
herein) and (3) after taking into account all legal (with the advice of outside
counsel), financial (including the financing terms of any such proposal),
regulatory and other aspects of such proposal and any other relevant factors
permitted under applicable law; provided that for purposes of the definition
of
“Superior Proposal”, the references to “more than 15%” in the definition of
Acquisition Proposal shall be deemed to be references to “a majority” and the
definition of Acquisition Proposal shall only refer to a transaction involving
BANK and not its Subsidiaries.
“Surviving
Bank”
shall
mean BANK as the Surviving Bank in the Merger.
“Takeover
Laws”
shall
have the meaning set forth in Section 5.28 of this Agreement.
“Tax
Opinion”
shall
have the meaning set forth in Section 9.1(e) of this Agreement.
“Taxes”
shall
mean any federal, state, county, local, foreign and other taxes, assessments,
charges, fares, and impositions, including interest and penalties thereon or
with respect thereto.
“Termination
Fee” shall
have the meaning set forth in Section 10.2(b) of this Agreement.
“TIB”
shall
mean TIB Financial Corp., a Florida corporation.
“TIB
Board”
shall
mean the Board of Directors of TIB.
“TIB
Common Stock”
shall
mean the $0.10 par value common stock of TIB.
“TIB
Companies”
shall
mean, collectively, TIB and all TIB Subsidiaries.
“TIB
Financial Statements”
shall
mean (i) the audited consolidated balance sheets (including related notes
and schedules, if any) of TIB as of December 31, 2005, 2004 and 2003, and
the related statements of income, changes in stockholders’ equity and cash flows
(including related notes and schedules, if any) for the years then ended, and
(ii) the consolidated balance sheets of TIB (including related notes and
schedules, if any) and related statements of income, changes in stockholders’
equity and cash flows (including related notes and schedules, if any) with
respect to periods ended subsequent to December 31, 2005.
“TIB
Subsidiaries”
shall
mean the Subsidiaries of TIB.
11.2 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 hereto with respect to the transactions provided for herein and
supersedes all prior arrangements or understandings with respect thereto,
written or oral.
11.3 Amendments.
To
the
extent permitted by Law, this Agreement may be amended by a subsequent writing
signed by each of the parties hereto upon the approval of the Boards of
Directors of each of the parties hereto; provided,
however,
that
after approval of this Agreement by the holders of BANK Common Stock, there
shall be made no amendment that pursuant to applicable Law requires further
approval by the BANK stockholders without the further approval of the BANK
stockholders.
11.4 Waivers.
(a) Prior
to
or at the Effective Time, TIB, acting through the TIB Board, 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 BANK, to waive or extend
the
time for the compliance or fulfillment by BANK of any and all of its obligations
under this Agreement, and to waive any or all of the conditions precedent to
the
obligations of TIB 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 TIB. No
representation or warranty in this Agreement shall be affected or deemed waived
by reason of the fact that TIB and/or its representatives knew or should have
known that any such representation or warranty was, is, might be or might have
been inaccurate in any respect.
(b) Prior
to
or at the Effective Time, BANK, acting through the BANK Board, 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 TIB, to waive or extend
the
time for the compliance or fulfillment by TIB of any and all of its obligations
under this Agreement, and to waive any or all of the conditions precedent to
the
obligations of BANK 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 BANK. No
representation or warranty in this Agreement shall be affected or deemed waived
by reason of the fact that BANK and/or its representatives knew or should have
known that any such representation or warranty was, is, might be or might have
been inaccurate in any respect.
11.5 Assignment.
Except
as
expressly provided for herein, 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 parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
11.6 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:
|
If
to BANK, then to:
|
The Bank of Venice
000
Xxxxxxx Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxx, 00000-0000
Telecopy
Number: (000) 000-0000
|
|||
| Attention: Xxxxx X. Xxxxx | ||||
| Chairman and Chief Executive Officer | ||||
|
|
||||
| with a copy to: |
Xxxxxx
& Xxxxx LLP
000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
Telecopy
Number: (000) 000-0000
|
|||
| Attention: Xxx Xxxxx, Esq. | ||||
| If to TIB, then to: |
000 0xx Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxx 00000-0000
Telecopy
Number: (000) 000-0000
|
|||
|
Attention: Xxxxxx
X. Xxxx
|
||||
| Chief Executive Officer | ||||
| with a copy to: |
Xxxxx Xxxxxxxxx, PA
Citrus Center, Suite 800
000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Telecopy
Number: (000) 000-0000
|
|||
|
Attention: Xxxx
X. Xxxxxxx, Esq.
|
||||
11.7 Brokers
and Finders.
Except
as
provided in Section 5.24, 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 provided for herein.
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
BANK or TIB, each of BANK and TIB, as the case may be, agrees to indemnify
and
hold the other Party harmless of and from any Liability with respect to any
such
claim.
11.8 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, except
to
the extent federal law shall be applicable.
11.9 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 document with the same force and effect as though all parties had executed
the same document.
11.10 Captions.
The
captions as to contents of particular articles, sections or paragraphs contained
in this Agreement and the table of contents hereto are for reference purposes
only and are not part of this Agreement.
11.11 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 hereto 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.
11.12 Severability.
Any
term
or provision of this Agreement that 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.
11.13 Construction
of Terms.
Where
the
context so requires or permits, the use of singular form includes the plural,
and the use of the plural form includes the singular, and the use of any gender
includes any and all genders. Accounting terms used and not otherwise defined
in
this Agreement have the meanings determined by, and all calculations with
respect to accounting or financial matters unless otherwise provided for herein,
shall be computed in accordance with generally accepted accounting principles,
consistently applied. References herein to articles, sections, paragraphs,
subparagraphs or the like shall refer to the corresponding articles, sections,
paragraphs, subparagraphs or the like of this Agreement. The words “hereof,”
“herein,” and terms of similar import shall refer to this entire Agreement.
Unless the context clearly requires otherwise, the use of the terms “including,”
“included,” “such as,” or terms of similar meaning, shall not be construed to
imply the exclusion of any other particular elements.
11.14 Schedules.
The
disclosures in the Schedules to this Agreement, and those in any supplement
thereto, must relate only to the representations and warranties in the Section
of the Agreement to which they expressly relate and not to any other
representation or warranty in this Agreement. In the event of any inconsistency
between the covenants or statements in the body of this Agreement and those
in
the Schedules (other than an exception expressly set forth as such in the
Schedules with respect to a specifically identified representation or warranty),
the covenants and statements in the body of this Agreement will
control.
11.15 Exhibits
and Schedules.
Each
of
the exhibits and schedules attached hereto is an integral part of this Agreement
and shall be applicable as if set forth in full at the point in the Agreement
where reference to it is made.
11.16 No
Third Party Beneficiaries.
Nothing
in this Agreement expressed or implied is intended to confer upon any Person,
other than the parties hereto or their respective successors, any right,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly contemplated by this Agreement.
11.17 Alternative
Structure. Subject
to BANK’s prior written consent, prior to the Effective Time, TIB may revise the
structure of the Merger and related transactions in order to substitute an
alternative TIB Subsidiary in the place of TIB-SUB, provided that BANK will
be
the Surviving Bank upon consummation of the Merger, and provided further that
each of the transactions comprising such revised structure shall (i) fully
qualify as, or fully be treated as part of, one or more tax-free reorganizations
within the meaning of Section 368(a) of the IRC, and not change the amount
of
consideration to be received by BANK=s
stockholders, (ii) be capable of consummation in as timely a manner as the
Merger, as the case may be, provided for herein, and (iii) not otherwise be
prejudicial to the interests of BANK’s stockholders. In such event, this
Agreement and any related documents shall be appropriately amended in order
to
reflect any such revised structure.
[Signature
page follows.]
IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed on its behalf and
its seal to be hereunto affixed and attested by its respectively authorized
officers as of the day and year first above written.
|
THE
BANK OF VENICE
|
|||
|
By:
|
/s/ Xxxxx X. Xxxxx | ||
|
Xxxxx X. Xxxxx
Chairman and Chief Executive Officer
|
|||
|
|
|||
|
TBV
INTERIM BANK (IN ORGANIZATION)
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxx | ||
|
Xxxxxx X. Xxxx
President and Chief Executive Officer
|
|||
|
|
|||
|
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxx | ||
|
Xxxxxx
X. Xxxx
President and Chief Executive
Officer
|
|||
[Exhibits
intentionally omitted]
