1
Exhibit 2.2
AGREEMENT TO MERGE
AMONG
FIRST NATIONAL BANK OF POLK COUNTY
CENTERSTATE BANKS OF FLORIDA, INC.
AND
FIRST INTERIM NATIONAL BANK OF POLK COUNTY
2
TABLE OF CONTENTS
Page
----
ARTICLE I - THE MERGER.................................................................................... 2
Section 1.1 Consummation of Merger; Closing Date............................................... 2
Section 1.2 Effect of Merger................................................................... 2
Section 1.3 Further Assurances................................................................ 3
Section 1.4 Directors and Officers............................................................ 3
Section 1.5 Name of Surviving Bank............................................................ 3
Section 1.6 Capitalization of Surviving Bank.................................................. 3
Section 1.7 Articles of Association and Bylaws................................................ 3
Section 1.8 Absence of Trust Powers........................................................... 3
ARTICLE II - CONVERSION OF SHARES........................................................................ 4
Section 2.1 Manner of Conversion of First National/Polk Shares............................... 4
Section 2.2 First National/Polk Stock Options and Related Matters............................. 4
Section 2.3 Fractional Shares................................................................. 5
Section 2.4 Effectuating Conversion........................................................... 5
Section 2.5 Laws of Escheat................................................................... 6
Section 2.6 CBF Shares........................................................................ 6
Section 2.7 FINB Shares....................................................................... 6
ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF FIRST NATIONAL/POLK............................................................ 7
Section 3.1 Representations and Warranties of First National/Polk............................. 7
(a) Organization, Qualification, and Corporate Power.................................. 7
(b) Capitalization.................................................................... 7
(c) First National/Polk Subsidiaries.................................................. 8
(d) Authorization of Transaction...................................................... 8
(e) Noncontravention.................................................................. 8
(f) Financial Statements.............................................................. 9
(g) Undisclosed Liabilities........................................................... 9
(h) Brokers' Fees..................................................................... 9
(i) Taxes............................................................................. 10
(j) Allowance for Loan or Credit Losses............................................... 10
(k) Properties; Insurance............................................................. 10
(1) Material Contracts................................................................ 11
(m) Material Contract Defaults........................................................ 11
(n) Compliance with Laws.............................................................. 11
(o) Employee Benefit Plans............................................................ 12
(p) Legal Proceedings................................................................. 13
(q) Absence of Certain Changes or Events.............................................. 13
(r) Reports........................................................................... 14
(s) Statements True and Correct....................................................... 14
(t) Environmental Matters............................................................. 14
(u) Labor Matters..................................................................... 15
3
Page
----
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF CBF..................................................... 16
Section 4.1 Representations and Warranties of CBF............................................. 16
(a) Organization, Qualification, and Corporate Power.................................. 16
(b) Capitalization.................................................................... 16
(c) CBF Subsidiaries.................................................................. 17
(d) Authorization of Transaction...................................................... 17
(e) Noncontravention.................................................................. 17
(f) Statements True and Correct....................................................... 17
ARTICLE V - COVENANTS AND AGREEMENTS................................................................... 18
Section 5.1 Covenants......................................................................... 18
(a) Current Information............................................................... 18
(b) Regulatory Matters and Approvals.................................................. 18
(c) Tax Opinion....................................................................... 19
(d) Conduct of Business Prior to the Effective Time of the Merger..................... 19
(e) Forbearance....................................................................... 20
(f) Issuance of Securities............................................................ 21
(g) No Acquisitions................................................................... 21
(h) Other Actions..................................................................... 21
(i) Government Filings................................................................ 22
(j) Tax-Free Reorganization Treatment................................................. 22
(k) Full Access....................................................................... 22
(1) Notice of Material Adverse Developments........................................... 22
(m) Exclusivity....................................................................... 22
(n) Filings with the Offices.......................................................... 23
(o) Press Releases.................................................................... 23
(p) Agreements of Affiliates.......................................................... 23
(q) Miscellaneous Agreements and Consents............................................. 23
(r) Indemnification................................................................... 24
(s) Fairness Opinions................................................................. 24
(t) Employee Benefit Plans............................................................ 24
ARTICLE VI - CONDITIONS TO THE OBLIGATIONS OF
FIRST NATIONAL/POLK AND CBF...................................................... 25
Section 6.1 Conditions to Obligation to Close................................................. 25
(a) Conditions to Obligation of CBF................................................... 25
(b) Conditions to Obligation of First National/Polk................................... 26
ARTICLE VII - TERMINATION.............................................................................. 27
Section 7.1 Termination....................................................................... 27
(a) Termination of Agreement.......................................................... 27
(b) Effect of Termination............................................................. 28
4
Page
----
ARTICLE VIII - MISCELLANEOUS........................................................................... 28
Section 8.1 Miscellaneous..................................................................... 28
(a) Survival.......................................................................... 28
(b) No Third Party Beneficiaries...................................................... 28
(c) Entire Agreement.................................................................. 28
(d) Successors and Assigns............................................................ 28
(e) Counterparts...................................................................... 29
(f) Headings.......................................................................... 29
(g) Notices........................................................................... 29
(h) Governing Law..................................................................... 29
(i) Amendments and Waivers............................................................ 29
(j) Severability...................................................................... 30
(k) Expenses.......................................................................... 30
(l) Construction...................................................................... 30
(m) Incorporation of Exhibits and Schedules........................................... 30
(n) Jurisdiction and Venue............................................................ 30
(o) Remedies Cumulative............................................................... 31
5
AGREEMENT TO MERGE
AMONG
FIRST NATIONAL BANK OF POLK COUNTY,
CENTERSTATE BANKS OF FLORIDA, INC.
AND
FIRST INTERIM NATIONAL BANK OF POLK COUNTY
This Agreement to Merge (the "Agreement") is dated as of the 10th day
of December, 1999 by and among FIRST NATIONAL BANK OF POLK COUNTY, a national
banking association ("First National/Polk") and CENTERSTATE BANKS OF FLORIDA,
INC., a Florida corporation ("CBF"); to be joined in by FIRST INTERIM NATIONAL
BANK OF POLK COUNTY, an interim national banking association to be organized as
a wholly-owned subsidiary of CBF under the laws of the United States and to
become a party to this Agreement upon its organization ("FINB"). First
National/Polk, CBF and FINB are individually referred to in this Agreement as a
"Party" and collectively as the "Parties."
BACKGROUND
The respective Boards of Directors of First National/Polk and CBF deem
it in the best interests of First National/Polk and CBF, respectively, and of
their respective shareholders, that First National/Polk and FINB merge pursuant
to this Agreement in a transaction that qualifies as a reorganization pursuant
to Section 368(a) of the Internal Revenue Code of 1986 (the "Internal Revenue
Code") (the "Merger"), and the Boards of Directors of the Parties have approved
this Agreement and the Merger, which provides for CBF to issue shares of its
common stock to the shareholders of First National/Polk, as herein provided.
This Agreement is between (A) First National/Polk, being located at
0000 XX 000 Xxxx, Xxxx xx Xxxxxx Xxxx, Xxxxxx of Polk, in the State of Florida,
with a capital of $6,479,543, consisting of (i) 2,378,125 shares of common
stock divided into 475,625 shares of common stock, each of $5.00 par value,
(ii) surplus of $2,422,422, and (iii) undivided profits of $1,678,996 as of
September 30, 1999, acting pursuant to a resolution of its board of directors,
adopted by the vote of a majority of its directors, pursuant to the authority
given by and in accordance with the provisions of the Act of November 7, 1918,
as amended (12 U.S.C. 215(a)); (B) CBF, which has been organized for purposes
of serving as a bank holding company for First National/Polk and other banks;
and (C) FINB, to be located at 0000 XX 000 Xxxx, Xxxxxx Xxxxx, Xxxxxxx 00000,
with a capital of $100,000, divided into 1,000 shares of common stock, each of
$100 par value, surplus of $20,000, and no undivided profits, acting pursuant
to a resolution to be adopted by its Board of Directors, and by the vote of a
majority of its directors, pursuant to the authority given by and in accordance
with the provisions of the Act of November 7, 1918, as amended (12 U.S.C.
215(a)).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations, warranties and agreements herein contained, the
Parties agree as follows:
1
6
ARTICLE I
THE MERGER
Section 1.1 Consummation of Merger; Closing Date. (a) Subject to the
provisions hereof, First National/Polk shall be merged with and into FINB
(which has heretofore and shall hereinafter be referred to as the "Merger"),
under the charter of First National/Polk, pursuant to 12 U.S.C. ss.215a of the
National Bank Act, and FINB shall be the surviving corporation (sometimes
hereinafter referred to as "Surviving Bank" when reference is made to it after
the Effective Time of the Merger (as defined below)). The name of the Surviving
Bank shall be First National Bank of Polk County, and the business of the
Surviving Bank shall be that of a national banking association. The Merger
shall become effective on the date and at the time set forth in the Certificate
of Merger relating to the Merger issued by the Office of the Comptroller of the
Currency (the "OCC") (such time is hereinafter referred to as the "Effective
Time of the Merger"). Subject to the terms and conditions hereof, unless
otherwise agreed upon by First National/Polk and CBF, the Effective Time of the
Merger shall occur on the 10th business day following the later to occur of (i)
the effective date (including the expiration of any applicable waiting period)
of the last required Consent (as defined below) of any Regulatory Authority (as
defined below) having authority over the transactions contemplated pursuant to
this Agreement, (ii) the date on which the shareholders of First National/Polk
approve the transactions contemplated by this Agreement, and (iii) the date of
the satisfaction or waiver of all other conditions precedent to the
transactions contemplated by this Agreement. As used in this Agreement,
"Consent" shall mean a consent, approval, authorization, waiver, clearance,
exemption or similar affirmation by any person pursuant to any contract,
permit, law, regulation or order, and "Regulatory Authorities" shall mean,
collectively, the OCC, the Florida Department of Banking and Finance (the
"Florida Department"), the Office of Thrift Supervision ("OTS"), the Federal
Trade Commission (the "FTC"), the United States Department of Justice (the
"Justice Department"), the Board of Governors of the Federal Reserve System
(the "FRB"), the Federal Deposit Insurance Corporation (the "FDIC"), the
National Association of Securities Dealers, Inc., all national securities
exchanges and the Securities and Exchange Commission (the "SEC").
(b) The closing of the Merger (the "Closing") shall take
place at such location as the Parties hereto shall determine at 10:00 a.m.
local time on the day that the Effective Time of the Merger occurs, or such
other date, time and place as the Parties may agree (the "Closing Date").
Subject to the provisions of this Agreement, at the Closing there shall be
delivered to each of the Parties hereto the opinions, certificates and other
documents and instruments required to be so delivered pursuant to this
Agreement.
(c) After the Effective Time of the Merger, the business of
the Surviving Bank shall be conducted at its main office which shall be located
at 0000 XX 000 Xxxx, Xxxxxx Xxxxx, XX 00000, and at its legally established
branches.
Section 1.2 Effect of Merger. At the Effective Time of the Merger,
First National/Polk shall be merged with and into FINB, under the charter of
First National/Polk, and the separate existence of First National/Polk shall
cease. The Surviving Bank shall be that of a national banking association.
Except as otherwise provided in this Agreement, the Surviving Bank shall have
all the rights, privileges, immunities and powers and shall be subject to all
the duties and liabilities of a banking association organized under the laws of
the United States and shall thereupon and thereafter possess all other
privileges, immunities and franchises of a private, as well as of a public
nature, of each of the constituent corporations. All property (real, personal
and mixed) and all debts on whatever account, including subscriptions to
shares, and all choses in action, all and every other interest, of or belonging
to or due to each of the constituent corporations so merged shall be taken and
deemed to be transferred to and vested in the Surviving Bank without further
act or deed. The
2
7
title to any real estate, or any interest therein, vested in any of the
constituent corporations shall not revert or be in any way impaired by reason
of the Merger. Except as otherwise provided in this Agreement, the Surviving
Bank shall thenceforth be responsible and liable for all the liabilities and
obligations of each of the constituent corporations so merged and any claim
existing or action or proceeding pending by or against either of the
constituent corporations may be prosecuted as if the Merger had not taken place
or the Surviving Bank may be substituted in its place. Neither the rights of
creditors nor any liens upon the property of any constituent corporation shall
be impaired by the Merger.
Section 1.3 Further Assurances. From and after the Effective Time of
the Merger, as and when requested by the Surviving Bank, the officers and
directors of First National/Polk last in office shall execute and deliver or
cause to be executed and delivered in the name of First National/Polk such
deeds and other instruments and take or cause to be taken such further or other
actions as shall be necessary in order to vest or perfect in or confirm of
record or otherwise to the Surviving Bank title to and possession of all of the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of First National/Polk.
Section 1.4 Directors and Officers. From and after the Effective
Time of the Merger and until their successors shall be duly elected and
qualified, Xxxxx X. Xxxxxxx, G. Xxxxxx Xxxxxxxxx, Sr., Xxxxx X. Xxxxxx, X.
Xxxxx Judge, Jr., Xxxxxx X. Xxxxxx, XX, X. Xxxxxx Rocker and Xxxxx X. Xxxxx
shall serve as the CBF Board of Directors (or, if any one or more of such
Directors is unwilling or unable to serve as a Director of CBF, such substitute
Director as the then remaining directors of CBF shall determine). From and
after the Effective Time of the Merger and until their successors shall be duly
elected and qualified, the directors and executive officers of the Surviving
Bank shall consist of those individuals who were serving as directors and
executive officers, respectively, of First National/Polk as of the Effective
Time of the Merger. The names and addresses of the Directors and executive
officers of the Surviving Bank are attached hereto as Schedule 1.4. From and
after the Effective Time of the Merger and until their successors shall be duly
elected and qualified: Xxxxx X. Xxxxx shall serve as Chairman of the Board,
President and Chief Executive Officer, G. Xxxxxx Xxxxxxxxx, Sr. shall serve as
Vice Chairman of the Board, and Xxxxxx X. Xxxxxxxx shall serve as Secretary.
Section 1.5 Name of Surviving Bank. The name of the Surviving Bank
shall be First National Bank of Polk County.
Section 1.6 Capitalization of Surviving Bank. As of the Effective
Time of the Merger, the Surviving Bank shall have 5,000,000 shares of common
stock, par value $5.00 per share, authorized of which 475,625 shares shall be
issued and outstanding (plus shares of First National/Polk common stock issued
after September 30, 1999), all of which shall be owned by CBF. The Surviving
Bank shall have no other classes of capital stock authorized or outstanding. As
of the Effective Time of the Merger, the capital, surplus and retained earnings
of the Surviving Bank shall be as set forth on Schedule 1.6. Preferred stock
shall not be issued by the Surviving Bank.
Section 1.7 Articles of Association and Bylaws. The Articles of
Association and Bylaws under which the Surviving Bank will operate are attached
hereto as Schedule 1.7.
Section 1.8 Absence of Trust Powers. The Surviving Bank shall not
have trust powers.
3
8
ARTICLE II
CONVERSION OF SHARES
Section 2.1 Manner of Conversion of First National/Polk Shares.
Subject to the provisions hereof, as of the Effective Time of the Merger and by
virtue of the Merger and without any further action on the part of the holder
of any shares of common stock of First National/Polk, par value $5.00 per share
(the "First National/Polk Shares"):
(a) All First National/Polk Shares which are held by First
National/Polk as treasury stock, if any, shall be canceled and retired and no
consideration shall be paid or delivered in exchange therefor.
(b) Subject to the terms and conditions of this Agreement,
including, without limitation, Section 2.3 hereof and except with regard to
Dissenting First National/Polk Shares (as hereinafter defined), each First
National/Polk Share outstanding immediately prior to the Effective Time of the
Merger shall be converted into the right to receive 1.62 shares of common stock
of CBF, par value $.01 per share (the "CBF Shares"). The applicable amount of
CBF Shares issuable in the Merger for each First National/Polk Share pursuant
to this Section, as may be adjusted as provided herein, shall be hereinafter
referred to as the "Conversion Ratio." The Conversion Ratio, including the
number of CBF Shares issuable in the Merger, shall be subject to an appropriate
adjustment in the event of any stock split, reverse stock split, dividend
payable in CBF Shares, reclassification or similar distribution whereby CBF
issues CBF Shares or any securities convertible into or exchangeable for CBF
Shares without receiving any consideration in exchange therefor, provided that
the record date of such transaction is a date after the date of this Agreement
and prior to the Effective Time of the Merger.
(c) Each outstanding First National/Polk Share, the holder
of which has perfected dissenters' rights in accordance with the provisions of
the National Bank Act (the "Dissent Provisions") and has not effectively
withdrawn or lost such holder's right to such appraisal (the "Dissenting First
National/Polk Shares"), shall not be converted into or represent a right to
receive the CBF Shares issuable in the Merger but the holder thereof shall be
entitled only to such rights as are granted by the Dissent Provisions. First
National/Polk shall give CBF prompt notice upon receipt by First National/Polk
of any written objection to the Merger and any written demands for payment of
the fair or appraised value of First National/Polk Shares, and of withdrawals
of such demands, and any other instruments provided to First National/Polk
pursuant to the Dissent Provisions (any shareholder duly making such demand
being hereinafter called a "Dissenting Shareholder"). Each Dissenting
Shareholder who becomes entitled, pursuant to the Dissent Provisions, to
payment of fair value of any First National/Polk Shares held by such Dissenting
Shareholder shall receive payment therefor from the Surviving Bank (but only
after the amount thereof shall have been agreed upon or at the times and in the
amounts required by the Dissent Provisions) and all of such Dissenting
Shareholder's First National/Polk Shares shall be canceled. If any Dissenting
Shareholder shall have failed to perfect or shall have effectively withdrawn or
lost such right to demand payment of fair or appraised value, the First
National/Polk Shares held by such Dissenting Shareholder shall thereupon be
deemed to have been converted into the right to receive the consideration to be
issued in the Merger as provided by this Agreement.
Section 2.2 First National/Polk Stock Options and Related Matters.
As of the Effective Time of the Merger, all rights with respect to the First
National/Polk Shares issuable pursuant to the exercise of stock purchase
options ("First National/Polk Options") granted by First National/Polk and
which are outstanding at the Effective Time of Merger shall be converted into
options for CBF Shares (the "Merger Options") in compliance with any
restrictions contained in the plan or
4
9
agreement, if any, under which such First National/Polk Options were issued.
Each holder of a First National/Polk Option shall have the right to acquire as
of the Effective Time of the Merger a number of CBF Shares equal to the product
(rounded up to the next whole share) of (i) the number of First National/Polk
Shares covered by such First National/Polk Option immediately prior to the
Effective Time of the Merger and (ii) the Conversion Ratio; and the exercise
price per share of the CBF Shares at which such First National/Polk Option is
exercisable shall be an amount (rounded up to the next whole cent) computed by
dividing (i) the exercise price per share of the First National/Polk Shares at
which such First National/Polk Option is exercisable immediately prior to the
Effective Time of the Merger by (ii) the Conversion Ratio.
Section 2.3 Fractional Shares. Notwithstanding any other provision
of this Agreement, each holder of First National/Polk Shares converted pursuant
to the Merger who would otherwise have been entitled to receive a fraction of a
CBF Share (after taking into account all certificates delivered by such
holder), shall receive, in lieu thereof, cash (without interest) in an amount
equal to such fractional part of such CBF Share, multiplied by the book value
per First National/Polk Share as of the end of the calendar month immediately
preceding or occurring on the Effective Time of the Merger. No such holder
shall be entitled to dividends, voting rights or any other rights as a
shareholder in respect of any fractional share.
Section 2.4 Effectuating Conversion. (a) CBF, or such other
institution as CBF may designate, shall serve as the exchange agent (the
"Exchange Agent"). The Exchange Agent may employ sub-agents in connection with
performing its duties. After the Effective Time of the Merger, CBF shall cause
the Exchange Agent to deliver the consideration to be paid by CBF for the First
National/Polk Shares, along with the appropriate cash payment in lieu of
fractional interests in CBF Shares. As promptly as practicable after the
Effective Time of the Merger, the Exchange Agent shall send or cause to be sent
to each former holder of record of First National/Polk Shares transmittal
materials (the "Letter of Transmittal") for use in exchanging their
certificates formerly representing First National/Polk Shares for the
consideration provided for in this Agreement. The Letter of Transmittal shall
contain instructions with respect to the surrender of certificates representing
First National/Polk Shares and the receipt of the consideration contemplated by
this Agreement and shall require each holder of First National/Polk Shares to
transfer good and marketable title to such First National/Polk Shares to CBF,
free and clear of all liens, claims and encumbrances.
(b) At the Effective Time of the Merger, the stock transfer
books of First National/Polk shall be closed as to holders of First
National/Polk Shares immediately prior to the Effective Time of the Merger and
no transfer of First National/Polk Shares by any such holder shall thereafter
be made or recognized and each outstanding certificate formerly representing
First National/Polk Shares shall, without any action on the part of any holder
thereof, no longer represent First National/Polk Shares. If, after the
Effective Time of the Merger, certificates are properly presented to CBF, such
certificates shall be exchanged for the consideration contemplated by this
Agreement into which the First National/Polk Shares represented thereby were
converted in the Merger.
(c) In the event that any holder of First National/Polk
Shares is unable to deliver the certificate which represents such holder's
First National/Polk Shares, CBF, in the absence of actual notice that any First
National/Polk Shares theretofore represented by any such certificate have been
acquired by a bona fide purchaser, may, in its discretion, deliver to such
holder the consideration contemplated by this Agreement and the amount of cash
representing fractional CBF Shares to which such holder is entitled in
accordance with the provisions of this Agreement upon the presentation of all
of the following:
5
10
(i) An affidavit or other evidence to the reasonable
satisfaction of CBF that any such certificate has been lost, wrongfully taken
or destroyed;
(ii) Such security or indemnity as may be reasonably
requested by CBF to indemnify and hold CBF harmless; and
(iii) Evidence to the satisfaction of CBF that such
holder is the owner of the First National/Polk Shares theretofore represented
by each certificate claimed by such holder to be lost, wrongfully taken or
destroyed and that such holder is the person who would be entitled to present
each such certificate for exchange pursuant to this Agreement.
(d) In the event that the delivery of the consideration
contemplated by this Agreement and the amount of cash representing fractional
CBF Shares are to be made to a person other than the person in whose name any
certificate representing First National/Polk Shares 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 CBF that such tax
has been paid or is not applicable.
(e) No holder of First National/Polk Shares shall be
entitled to receive any dividends or distributions declared or made with
respect to the CBF Shares with a record date before the Effective Time of the
Merger. Neither the consideration contemplated by this Agreement, any amount of
cash representing fractional CBF Shares nor any dividend or other distribution
with respect to CBF Shares where the record date thereof is on or after the
Effective Time of the Merger shall be paid to the holder of any unsurrendered
certificate or certificates representing First National/Polk Shares as provided
for by this Agreement. Subject to applicable laws, following surrender of any
such certificate or certificates, there shall be paid to the holder of the
certificate or certificates then representing CBF Shares issued in the Merger,
without interest at the time of such surrender, the consideration contemplated
by this Agreement, the amount of any cash representing fractional CBF Shares
and the amount of any dividends or other distributions with respect to CBF
Shares to which such holder is entitled as a holder of CBF Shares.
Section 2.5 Laws of Escheat. If any of the consideration due or
other payments to be paid or delivered to the holders of First National/Polk
Shares 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, CBF shall
be entitled 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
First National/Polk, CBF, FINB, the Surviving Bank, nor any other person acting
on their behalf shall be liable to a holder of First National/Polk Shares 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.
Section 2.6 CBF Shares. The one CBF Share issued and outstanding at
the Effective Time of the Merger shall be cancelled and thus shall not be
outstanding after the Merger.
Section 2.7 FINB Shares. The shares of FINB common stock, par value
$100 per share, issued and outstanding at the Effective Time of the Merger
shall be converted as a result of, and upon the Effective Time of the Merger,
into 475,625 shares of common stock, each of $5.00 par
6
11
value (plus shares of First National/Polk Shares issued by First National/Polk
after September 30, 1999).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FIRST NATIONAL/POLK
Section 3.1 Representations and Warranties of First National/Polk.
First National/Polk represents and warrants to CBF that the statements
contained in this Article III are correct and complete as of the date of this
Agreement and shall be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article III), except (i) representations and
warranties which are confined to a specified date shall speak only as of such
date, (ii) as expressly contemplated by this Agreement, or (iii) as set forth
in the disclosure schedule prepared by First National/Polk and delivered to CBF
prior to the date of this Agreement (the "First National/Polk Disclosure
Schedule"). The First National/Polk Disclosure Schedule has been arranged in
paragraphs corresponding to the numbered and lettered paragraphs contained in
this Article III.
(a) Organization, Qualification, and Corporate Power. First
National/Polk is a national banking association duly organized, validly
existing, and in good standing under the laws of the United States. First
National/Polk is duly authorized to engage in the business of banking in
Florida as an insured bank under the Federal Deposit Insurance Act, as amended
(the "FDIA"). First National/Polk is duly authorized to conduct business and is
in good standing under the laws of each jurisdiction in which the nature of its
business or the ownership or leasing of its properties requires such
qualification except where the lack of such qualification would not have a
material adverse effect on its (i) business, financial condition or results of
operations, or (ii) ability to consummate the transactions contemplated by this
Agreement (together, its "Condition"); it being understood and agreed that, for
purposes of this Agreement, a material adverse effect on the Condition of a
Party shall not include a decline in results of operations resulting from any
change in law, rule, regulation or GAAP which impacts banks or bank holding
companies generally in a substantially similar manner. First National/Polk has
full corporate power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it. True and
complete copies of the Articles of Association and the Bylaws of First
National/Polk are attached hereto as Schedule 3(a). First National/Polk has in
effect all federal, state, local and foreign governmental, regulatory and other
authorizations, permits and licenses necessary for it to own or lease its
properties and assets and to carry on its business as now conducted, the
absence of which, individually or in the aggregate, would have a material
adverse effect on the Condition of First National/Polk.
(b) Capitalization. The authorized capital stock of First
National/Polk consists of 5,000,000 First National/Polk Shares, of which
475,625 First National/Polk Shares are issued and outstanding on the date of
this Agreement. There are no other classes of capital stock of First
National/Polk authorized. First National/Polk holds no First National/Polk
Shares as treasury stock. All of the issued and outstanding First National/Polk
Shares have been duly authorized and are validly issued, fully paid and
nonassessable. None of the outstanding First National/Polk Shares has been
issued in violation of any preemptive rights of the current or past
stockholders of First National/Polk. Except with respect to the 37,450 First
National/Polk Shares issuable pursuant to the First National/Polk Options,
there are no outstanding or authorized options, warrants, rights, contracts,
calls, puts, rights to subscribe, conversion rights, or other agreements or
commitments to which First National/Polk is a party or which are binding upon
First National/Polk or, to the Knowledge of First National/Polk, any other
party providing for the issuance, voting, transfer,
7
12
disposition, or acquisition of any of the capital stock of First National/Polk.
There are no outstanding or authorized stock appreciation, phantom stock or
similar rights with respect to First National/Polk. For purposes of this
Agreement, the term "Knowledge" means actual knowledge after reasonable
investigation of the Chairman, President, Chief Financial Officer, Chief
Accounting Officer or any Executive or Senior Vice President of such Party.
(c) First National/Polk Subsidiaries. First National/Polk has
no Subsidiary or Subsidiaries. For purposes of this Agreement, the term
"Subsidiary" means all those corporations, associations or other entities of
which the entity in question owns or controls 5% or more of the outstanding
equity securities either directly or through an unbroken chain of entities as
to each of which 5% 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, any such entity which
owns or operates an automatic teller machine interchange network, any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity or any such entity which is a general industry association or group.
(d) Authorization of Transaction. First National/Polk has
full power and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its obligations hereunder;
provided, however, that First National/Polk cannot consummate the Merger unless
and until all requisite approvals are received from the Regulatory Authorities
and the approval of the shareholders of First National/Polk has been obtained.
Subject to the foregoing sentence, (i) this Agreement has been duly executed
and delivered by First National/Polk and this Agreement constitutes a valid and
binding agreement of First National/Polk, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency and other similar
laws affecting creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies, (ii) the performance
by First National/Polk of its obligations under this Agreement and the
consummation of the Merger and the other transactions provided for under this
Agreement have been or will be duly and validly authorized by all necessary
corporate action on the part of First National/Polk, and (iii) the Board of
Directors of First National/Polk has approved the execution, delivery and
performance of this Agreement and the consummation of the Merger and the other
transactions provided for under this Agreement. Other than to or from the
Regulatory Authorities or to or from the Internal Revenue Service ("IRS") or
the Pension Benefit Guaranty Corporation ("PBGC") with respect to any employee
benefit plans, First National/Polk does not need to give any notice to, make
any filing with, or obtain any authorization, consent or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent, or approval would not
have a material adverse effect on the Condition of First National/Polk.
(e) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby, will (i) subject to the receipt of the approvals contemplated in
Section 3(d) above, violate any statute, regulation, rule, judgment, order,
decree, stipulation, injunction, charge, or other restriction of any
government, governmental agency, or court to which First National/Polk is
subject or any provision of the Articles of Association or Bylaws of First
National/Polk or (ii) with the passing of time or the giving of notice or both,
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any contract, lease, sublease,
license, franchise, permit, indenture, agreement or mortgage for borrowed
money, instrument of indebtedness, Security Interest, or other obligation to
which First National/Polk is a party or by which it is bound or to which any of
its assets is subject (or result in the imposition of any Security Interest
upon any of its assets) except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Security Interest would
8
13
not have a material adverse effect on the Condition of First National/Polk. For
purposes of this Agreement, the term "Security Interest" means any mortgage,
pledge, security interest, encumbrance, charge, or other lien, other than (a)
mechanics, materialmen, and similar liens, (b) liens for taxes not yet due and
payable or for taxes that the taxpayer is contesting in good faith through
appropriate proceedings, (c) liens arising under workers compensation,
unemployment insurance, social security, retirement, and similar legislation,
(d) liens on goods in transit incurred pursuant to documentary letters of
credit, (e) purchase money liens and liens securing rental payments under
capital lease arrangements, and (f) other liens arising in the Ordinary Course
of Business and not incurred in connection with the borrowing of money. For
purposes of this Agreement, the term "Ordinary Course of Business" means the
ordinary course of business consistent with past custom and practice (including
with respect to quantity and frequency).
(f) Financial Statements. First National/Polk has delivered
to CBF prior to the execution of this Agreement copies of the following
financial statements of First National/Polk (collectively referred to herein as
the "First National/Polk Financial Statements"): (i) audited balance sheets of
First National/Polk at December 31, 1998 and 1997, and the related statements
of (A) income, (B) shareholders' equity and (C) cash flows for the years then
ended and the notes thereto as reported upon by its independent certified
public accountants, and (ii) unaudited balance sheet of First National/Polk at
September 30, 1999, and the related unaudited statements of (A) income and (B)
shareholders' equity for the period then ended.
The First National/Polk Financial Statements (as of the
dates thereof and for the periods covered thereby): (i) have been prepared from
the books and records of First National/Polk, which in all material respects
account for those transactions which in accordance with good business practices
and applicable banking and other legal requirements are required to be
accounted for, and (ii) present fairly in all material respects the financial
position and the results of operations and cash flows of First National/Polk as
of the dates and for the periods indicated, in accordance with GAAP, applied on
a basis consistent with prior periods except as disclosed in the notes thereto
or, in the case of unaudited quarterly statements, subject to normal recurring
year-end adjustments that are not material and the absence of certain footnote
and cash flow information.
(g) Undisclosed Liabilities. First National/Polk has no
liability (whether known or unknown, whether absolute or contingent, whether
liquidated or unliquidated, and whether due or to become due), including any
liability for taxes, except for (i) liabilities for future disbursements on
letters of credit, lines of credit and similar instruments or unfunded loan
commitments, (ii) liabilities accrued or reserved against in the balance sheet
dated as of September 30, 1999 included in the First National/Polk Financial
Statements or reflected in the notes thereto, and (iii) liabilities which have
arisen after September 30, 1999 in the Ordinary Course of Business or in
connection with the transactions provided for in this Agreement (none of which
relates to any breach of contract, breach of warranty, tort, infringement, or
violation of law or arose out of any charge, complaint, action, suit,
proceeding, hearing, investigation, claim, or demand and none of which,
individually or in the aggregate, materially and adversely affect the Condition
of First National/Polk). Since September 30, 1999, First National/Polk has not
incurred or paid any obligation or liability which would be material to the
Condition of First National/Polk, except in the Ordinary Course of Business.
(h) Brokers' Fees. Neither First National/Polk nor any of its
officers, directors or employees, has any liability or obligation to pay any
fees or commissions to, or has employed, any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
9
14
(i) Taxes.
(i) All federal, state, local and foreign tax returns
required to be filed by or on behalf of First National/Polk have been timely
filed or requests for extensions have been timely filed, granted and have not
expired, for periods ending on or before September 30, 1999, and all such
returns filed are true, complete and accurate in all material respects. First
National/Polk has timely paid or caused to be paid all taxes shown to be due on
such tax returns. There is no audit, examination, deficiency or refund
litigation or matter in controversy with respect to any taxes currently pending
involving First National/Polk. All material tax, interest, additions, and
penalties due with respect to completed and settled examinations or concluded
litigation have been paid, accrued or provided for.
(ii) First National/Polk has not executed an extension
or waiver of any statute of limitations on the assessment or collection of any
material tax due that is currently in effect.
(iii) Adequate provision for any federal, state, local
or foreign taxes due or to become due for First National/Polk for any period or
periods through and including September 30, 1999, has been made and is
reflected on the September 30, 1999 financial statements included in the First
National/Polk Financial Statements.
(iv) Deferred taxes of First National/Polk have been
provided for in the First National/Polk Financial Statements in accordance with
GAAP, subject in the case of interim financial statements to normal recurring
year-end adjustments.
(v) All taxes which First National/Polk is required
by law to withhold or to collect for payment have been duly withheld and
collected, and have been paid to the proper governmental entity or are being
withheld by First National/Polk, except where the failure of any of which,
individually or in the aggregate, would not have a material adverse effect on
the Condition of First National/Polk.
(j) Allowance for Loan or Credit Losses. The allowance for
loan or credit losses ("Allowance") shown on the balance sheet of First
National/Polk as of September 30, 1999 included in the First National/Polk
Financial Statements was, and the Allowance shown on the balance sheets of
First National/Polk as of dates subsequent to the execution of this Agreement
will to the Knowledge of First National/Polk be, in each case as of the dates
thereof, adequate to provide for losses relating to or inherent in the loan and
lease portfolios (including accrued interest receivable) of First National/Polk
and other extensions of credit (including letters of credit and commitments to
make loans or extend credit) by First National/Polk, except where the failure
of the Allowance to be so adequate would not have a material adverse effect on
the Condition of First National/Polk.
(k) Properties; Insurance. First National/Polk has good and
marketable title free and clear of all material liens, encumbrances, charges,
defaults or equities of whatever character to all of the properties and assets,
tangible or intangible, reflected in the First National/Polk Financial
Statements, except for liens disclosed in such Financial Statements, those
arising in the Ordinary Course of Business after September 30, 1999 or liens
which are not reasonably likely to have, individually or in the aggregate, a
material adverse effect on the Condition of First National/Polk. All buildings,
and all fixtures, equipment and other property and assets which are material to
its business and which are held under leases or subleases by First
National/Polk are held under valid instruments enforceable in accordance with
their respective terms (except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and except that the availability of the equitable remedy of
specific performance or
10
15
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought). The real property owned and used as facilities by
First National/Polk has never been used for the handling, treatment, storage or
disposal of any hazardous or toxic substance as defined under any applicable
state or federal law. All policies of fire, theft, liability and other
insurance maintained with respect to the assets or businesses of First
National/Polk, and the fidelity bonds in effect as to which First National/Polk
is a named insured, are described in Schedule 3(k) hereto. Substantially all of
First National/Polk's equipment in regular use has been well maintained and is
in good and serviceable condition, reasonable wear and tear excepted.
(1) Material Contracts. Neither First National/Polk nor any
of its assets, businesses or operations as of the date of this Agreement is a
party to, or is bound or affected by, or receives benefits under, any of the
following (whether written or oral and excluding agreements for the extension
of credit by First National/Polk made in the Ordinary Course of Business): (i)
any employment agreement or understanding (including any understandings or
obligations with respect to severance or termination pay liabilities or fringe
benefits) with any present or former officer, director, or employee, including
in any such person's capacity as a consultant (other than those which are
terminable at will without any further amount being payable thereunder), (ii)
any other agreement with any officer, director, employee, or affiliate, (iii)
any agreement with any labor union, (iv) any agreement which limits the ability
of First National/Polk to compete in any line of business or which involves any
restriction of the geographical area in which First National/Polk may carry on
its business (other than as may be required by law or applicable regulatory
authorities), or (v) any agreement, contract, arrangement or commitment with
annual payments aggregating $20,000 or more.
(m) Material Contract Defaults. First National/Polk is not in
default, and has not received any written notice or has any Knowledge that any
other party is in default, in any material respect under any contract, lease,
sublease, license, franchise, permit, indenture, agreement, or mortgage for
borrowed money, or instrument of indebtedness (except, as to the foregoing,
extensions of credit by First National/Polk in the Ordinary Course of
Business), and there has not occurred any event that with the lapse of time or
the giving of notice or both would constitute such a default.
(n) Compliance with Laws.
(i) First National/Polk is in compliance in all
respects with all laws, regulations, reporting and licensing requirements and
orders applicable to its business or to its employees conducting its business,
with any Regulatory Agreements (as hereinafter defined) applicable to First
National/Polk, and with its internal policies and procedures, except where the
breach or violation of any of which, individually or in the aggregate, would
not have a material adverse effect on the Condition of First National/Polk.
(ii) First National/Polk has not received any written
notification or communication from any Regulatory Authorities (A) asserting
that First National/Polk is not in substantial compliance with any of the
statutes, regulations, or ordinances which such Regulatory Authority enforces
which as a result of such noncompliance would have a material adverse effect on
the Condition of First National/Polk, (B) threatening to revoke any license,
franchise, permit or governmental authorization which is material to the
Condition of First National/Polk, (C) requiring or threatening to require First
National/Polk, or indicating that First National/Polk may be required, to enter
into or be subject to a cease and desist order, agreement, memorandum of
understanding or any other agreement or undertaking (or to cause its Board of
Directors to adopt any resolutions) restricting or limiting or purporting to
restrict or limit in any manner the operations of First National/Polk,
including, without limitation, any restriction on the payment of dividends, or
(D) directing, restricting or limiting, or purporting to direct, restrict or
limit in any manner the operations
11
16
of First National/Polk, including, without limitation, any restriction on the
payment of dividends (any such notice, communication, order, agreement,
memorandum, resolutions or undertaking described in this sentence herein
referred to as a "Regulatory Agreement"). First National/Polk has not consented
to, entered into, agreed to enter into, or been made subject to, any Regulatory
Agreement. First National/Polk has no Knowledge that any Regulatory Authority
is considering imposing on First National/Polk any Regulatory Agreement.
(o) Employee Benefit Plans.
(i) The First National/Polk Disclosure Schedule lists
every pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus or other incentive
plan, any other written or unwritten employee program, arrangement, agreement
or understanding, whether arrived at through collective bargaining or
otherwise, any medical, vision, dental or other health plan, any life insurance
plan, any golden parachute or other executive compensation plan, or any other
employee benefit plan or fringe benefit plan, including, without limitation,
any "employee benefit plan" as that term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") (a
"Benefit Plan" or, collectively, "Benefit Plans"), currently or expected to be
adopted, maintained by, sponsored in whole or in part by, or contributed to by
First National/Polk or any ERISA Affiliate (as herein defined) for the benefit
of its employees, retirees, dependents, spouses, directors, independent
contractors or other beneficiaries and under which any of its employees,
retirees, dependents, spouses, directors, independent contractors or other
beneficiaries are eligible to participate (collectively, the "First
National/Polk Benefit Plans"). No First National/Polk Benefit Plan is or has
been a multi-employer plan within the meaning of Section 3(37) and Section
4001(a)(3) of ERISA. For purposes of this Section 4(o), the term "ERISA
Affiliate" means each trade or business (whether or not incorporated) which
together with First National/Polk is treated as a single employer under Section
414(b), (c), (m) or (o) of the Internal Revenue Code.
(ii) True, correct and complete copies of all written
First National/Polk Benefit Plans and descriptions of all unwritten First
National/Polk Benefit Plans listed in the First National/Polk Disclosure
Schedule and all trust agreements or other funding arrangements, including
insurance contracts, all amendments thereto and, where applicable, with respect
to any such plans or plan amendments, all determination letters, rulings,
opinion letters, information letters, or advisory opinions issued by the IRS or
the United States Department of Labor after December 31, 1974, annual reports
or returns, audited or unaudited financial statements, actuarial valuations,
and summary annual reports for the most recent three plan years, the most
recent summary plan descriptions and any material modifications thereto, have
previously been delivered to CBF or will be attached to the First National/Polk
Disclosure Schedule.
(iii) All the First National/Polk Benefit Plans and the
related trusts are in material compliance with, and have been administered in
material compliance with, the provisions of ERISA, the provisions of the
Internal Revenue Code and all other applicable laws, rules and regulations and
collective bargaining agreements. Any required governmental approvals for the
First National/Polk Benefit Plans have been obtained, including, but not
limited to, favorable determination letters on the qualification of the ERISA
Plans and tax exemption of related trusts, as applicable, under the Internal
Revenue Code, and all such governmental approvals continue in full force and
effect. To the Knowledge of First National/Polk, neither First National/Polk
nor any administrator or fiduciary of any First National/Polk Benefit Plan or
agent or delegate of any of the foregoing has engaged in any transaction or
acted or failed to act in any manner which could subject First National/Polk,
CBF or any affiliate thereof to any direct or indirect liability for a breach
of any fiduciary, co-fiduciary or other duty under ERISA. To the Knowledge of
First National/Polk, no oral or written representation or communication with
respect to any aspect of the First National/Polk
12
17
Benefit Plans has been made to employees of First National/Polk prior to the
Effective Time of the Merger which is not in accordance with the written or
otherwise pre-existing terms and provisions of such First National/Polk Benefit
Plans in effect at the time of such communication. There are no unresolved
claims or disputes under the terms of, or in connection with, the First
National/Polk Benefit Plans and no action, legal or otherwise, has been
commenced with respect to any claim under the terms of, or in connection with,
the First National/Polk Benefit Plans.
(iv) To the Knowledge of First National/Polk, no
"party in interest" (as defined in Section 3(14) of ERISA) or "disqualified
person" (as defined in Section 4975(e)(2) of the Internal Revenue Code) of any
First National/Polk Benefit Plan has engaged in any "prohibited transaction"
(within the meaning of Section 4975(c) of the Internal Revenue Code or Section
406 of ERISA). There has been no (A) "reportable event" (as defined in Section
4043 of ERISA), or event described in Section 4062(e) or Section 4063(a) of
ERISA, or (B) termination or partial termination, withdrawal or partial
withdrawal with respect to any of the ERISA Plans which: (1) First
National/Polk maintains or contributes to or has maintained or contributed to
or was required to maintain or contribute to for the benefit of employees of
First National/Polk; or (2) which has been maintained or contributed to or was
required to be maintained or contributed to by any member of a controlled group
of trades or business as defined in ERISA Section 4001(a)(14) which has, since
January 1, 1975, included First National/Polk.
(v) For any given ERISA Plan relating to First
National/Polk, all assets of such plan are carried at their fair market value,
to the extent required by the plan document and applicable law, and the fair
market value of such plan's assets equals or exceeds the present value of all
benefits (whether vested or not) accrued to date by all present or former
participants in such plan. No First National/Polk Benefit Plan is subject to
the rules of the PBGC.
(vi) As of the Effective Time, First National/Polk
will not have any material current or future liability under any First
National/Polk Benefit Plan that was not reflected in the First National/Polk
Financial Statements.
(vii) No First National/Polk Benefit Plan provides for
welfare benefits (as defined in ERISA Section 3(1)) to employees after
retirement other than as may be required by Section 601 et seq. of ERISA.
(viii) Each First National/Polk Benefit Plan may be
terminated by the Surviving Bank in its sole discretion on or after the Closing
Date without liability of any kind or description arising from either such
termination or any action attributable to the Surviving Bank.
(ix) The execution of, or performance of the
transactions contemplated by, this Agreement will not create, accelerate or
increase any obligations under the First National/Polk Benefit Plans, and will
not require or cause to be payable any payment which is or would be an "excess
parachute payment" under Section 28OG of the Internal Revenue Code.
(p) Legal Proceedings. There are no actions, suits or
proceedings instituted or pending or, to the Knowledge of First National/Polk,
threatened (or unasserted but considered probable of assertion and which if
asserted would have at least a reasonable probability of an unfavorable
outcome) against First National/Polk, or against any property, asset, interest
or right of First National/Polk, that have a reasonable probability either
individually or in the aggregate of having a material adverse effect on the
Condition of First National/Polk.
(q) Absence of Certain Changes or Events. Since September
30, 1999, the businesses of First National/Polk has been operated only in the
ordinary course consistent with past
13
18
practices and since such date there has not been, occurred or arisen: (i) any
damage, destruction, loss or casualty whether or not covered by insurance which
has had or is reasonably likely to have a material adverse effect on the
Condition of First National/Polk; (ii) any declaration, setting aside or
payment of any dividend or distribution (whether in cash, stock or property) in
respect of the First National/Polk Shares or any redemption or other
acquisition of the First National/Polk Shares by First National/Polk or any
split, combination or reclassification of First National/Polk Shares declared
or made; (iii) any extraordinary losses required by GAAP to be disclosed as
such that have been suffered and not adequately reserved against, whether or
not in the Ordinary Course of Business; (iv) any material assets mortgaged,
pledged or subjected to any lien, charge or other encumbrance; (v) any
agreement to do any of the foregoing; or (vi) any other event, development or
condition of any character including any change in results of operations,
financial condition, method of accounting or accounting practices, nature of
business, or manner of conducting the business of First National/Polk that has
had, or is reasonably likely to have, a material adverse effect on the
Condition of First National/Polk.
(r) Reports. Since September 30, 1999, First National/Polk
has filed all reports and statements, together with any amendments required to
be made with respect thereto, that it was required to file with any Regulatory
Authority. Each such report and statement, including the financial statements,
exhibits and schedules thereto, at the time of filing thereof complied in all
material respects with the laws and rules and regulations applicable to it and
did not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements made, in the light of the
circumstances under which they were made, not misleading.
(s) Statements True and Correct. No representation or
warranty made by First National/Polk in this Agreement, no written statement or
certificate included in an Exhibit or Schedule by First National/Polk in
connection with this Agreement, and no written statement or certificate to be
furnished by First National/Polk to CBF pursuant to this Agreement contains any
untrue statement of material fact or omits to state a material fact necessary
to make the statements made, in the light of the circumstances under which they
were made, not misleading. None of the information supplied or to be supplied
by First National/Polk for inclusion in the definitive proxy materials to be
mailed to First National/Polk shareholders in connection with the Special First
National/Polk Meeting (as defined in Section 5(b)(iii)), or in any other
documents to be filed with any Regulatory Authority in connection with the
transactions contemplated hereby, will at the respective time such documents
are filed fail to comply in all material respects with the laws and rules and
regulations applicable to First National/Polk, contain any untrue statement of
a material fact, or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. All documents that First National/Polk is responsible for
filing with any Regulatory Authority in connection with the Merger will comply
as to form in all material respects with the provisions of applicable law.
(t) Environmental Matters.
(i) To the Knowledge of First National/Polk, the
Participation Facilities, and the Loan Properties (each as hereinafter defined)
are, and have been, in compliance with all applicable laws, rules, regulations,
standards and requirements of the United States Environmental Protection Agency
("EPA") and of state and local agencies with jurisdiction over pollution or
protection of the environment, except for violations which, either individually
or in the aggregate, do not or would not result in a material adverse effect on
the Condition of First National/Polk.
(ii) To the Knowledge of First National/Polk, there
is no suit, claim, action or proceeding, pending or threatened, before any
court, governmental agency or board or other forum in which First National/Polk
or any Participation Facility has been or, with respect to threatened
14
19
proceedings, may be, named as a defendant (A) for alleged noncompliance
(including by any predecessor), with any environmental law, rule or regulation
or (B) relating to the release into the environment of any Hazardous Material
(as hereinafter defined) or oil whether or not occurring at or on a site owned,
leased or operated by First National/Polk or any Participation Facility except
as would not, either individually or in the aggregate, result in a material
adverse effect on the Condition of First National/Polk.
(iii) To the Knowledge of First National/Polk, there
is no suit, claim, action or proceeding, pending or threatened, before any
court, governmental agency or board or other forum in which any Loan Property
has been or, with respect to threatened proceedings, may be, named as a
defendant (A) for alleged noncompliance (including by any predecessor) with any
environmental law, rule or regulation or (B) relating to the release into the
environment of any Hazardous Material or oil whether or not occurring at or on
a site owned, leased or operated by a Loan Property, except where such
noncompliance or release does not or would not result, either individually or
in the aggregate, in a material adverse effect on the Condition of First
National/Polk.
(iv) To the Knowledge of First National/Polk, there
is no reasonable basis for any suit, claim, action or proceeding as described
in subsection (ii) or (iii) of this Section 3(t) except as would not,
individually or in the aggregate, have a material adverse effect on the
Condition of First National/Polk.
(v) During the period of (A) First National/Polk's
ownership or operation of any of its current properties, (B) First
National/Polk's participation in the management of any Participation
Facilities, or (C) First National/Polk's holding of a Security Interest in a
Loan Property, to the Knowledge of First National/Polk, there has been no
release of Hazardous Material or oil in, on, under or affecting such
properties, except where such release does not or would not result, either
individually or in the aggregate, in a material adverse effect on the Condition
of First National/Polk. Prior to the period of (A) First National/Polk's
ownership or operation of any of its current properties, (B) First
National/Polk's participation in the management of any Participation Facility,
or (C) First National/Polk holding of a Security Interest in a Loan Property,
to the Knowledge of First National/Polk, there was no release of Hazardous
Material or oil in, on, under or affecting any such property, Participation
Facility or Loan Property, except where such release does not or would not
result, either individually or in the aggregate, in a material adverse effect
on the condition of First National/Polk.
(vi) The following definitions apply for purposes of
this Section 3(t): (A) "Loan Property" means any real property in which First
National/Polk holds a Security Interest and, where required by the context,
said term means the owner or operator of such property; (B) "Participation
Facility" means any facility in which First National/Polk participates in the
management and where required by the context, said term means the owner or
operator of such property; and (C) "Hazardous Material" means any pollutant,
contaminant, or hazardous substance under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss.9601 et seq. or any
similar state law.
(u) Labor Matters. First National/Polk is not a party to, or
bound by, any collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is it the subject
of any material proceeding asserting that it has committed an unfair labor
practice or seeking to compel it to bargain with any labor organization as to
wages or conditions of employment nor is there any strike or other labor
dispute involving it pending or, to its Knowledge, threatened, any of which
would have, individually or in the aggregate, a material adverse effect on the
Condition of First National/Polk.
15
20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CBF
Section 4.1 Representations and Warranties of CBF. CBF represents
and warrants to First National/Polk that the statements contained in this
Article IV are correct and complete as of the date of this Agreement and shall
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article IV), except (i) representations and warranties which
are confined to a specified date shall speak only as of such date, (ii) as
expressly contemplated by this Agreement, or (iii) as set forth in the
disclosure schedule prepared by CBF and delivered to First National/Polk prior
to the date of this Agreement (the "CBF Disclosure Schedule"). The CBF
Disclosure Schedule has been arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this Article IV.
(a) Organization, Qualification, and Corporate Power. CBF is
a corporation duly organized, validly existing, and in good standing under the
laws of Florida. CBF is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction in which the nature of its
business or the ownership or leasing of its properties requires such
qualification except where the lack of such qualification would not have a
material adverse effect on its Condition. CBF has full corporate power and
authority to carry on the business in which it is engaged and to own and use
the properties owned and used by it. True and complete copies of the Articles
of Incorporation and the Bylaws of CBF are attached hereto as Schedule 4(a).
CBF has in effect all federal, state, local and foreign governmental,
regulatory and other authorizations, permits and licenses necessary for it to
own or lease its properties and assets and to carry on its business as now
conducted, the absence of which, individually or in the aggregate, would have a
material adverse effect on the Condition of CBF on a consolidated basis.
As of the Effective Time of the Merger, FINB (i) will be
an interim national banking association duly organized, validly existing and in
good standing under the laws of the United States (ii) will have the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as proposed to be conducted pursuant to this Agreement,
and (iii) will be licensed or qualified to do business in each jurisdiction
which the nature of the business conducted or to be conducted by FINB, or the
character or location or the properties and assets owned or leased by FINB,
make such licensing or qualification necessary, except where the failure to be
so licensed or qualified (or steps necessary to cure such failure) would not
have a material adverse effect on the Condition of CBF on a consolidated basis.
FINB, as of the Effective Time of the Merger, will have in effect all federal,
state, local and foreign governmental, regulatory or other authorizations,
permits and licenses necessary for it to own or lease its properties and assets
and to carry on its business as proposed to be conducted, the absence of which,
either individually or in the aggregate, would have a material adverse effect
on the Condition of CBF on a consolidated basis.
(b) Capitalization. The authorized capital stock of CBF
consists of (i) 20,000,000 CBF Shares, of which one CBF Share is issued and
outstanding on the date of this Agreement, and (ii) 5,000,000 shares of
preferred stock, $.01 par value, none of which are issued and outstanding on
the date of this Agreement. There are no other classes of capital stock of CBF
authorized. CBF holds no CBF Shares as treasury stock. All of the issued and
outstanding CBF Shares have been duly authorized and are validly issued, fully
paid and nonassessable. None of the outstanding CBF Shares has been issued in
violation of any preemptive rights of the current or past stockholders of CBF.
There are no outstanding or authorized options, warrants, rights, contracts,
calls, puts, rights to subscribe, conversion rights, or other agreements or
commitments to which CBF is a party or which are binding upon CBF or, to the
Knowledge of CBF, any other party providing for the issuance, voting, transfer,
disposition, or acquisition of any of the capital stock of CBF.
16
21
There are no outstanding or authorized stock appreciation, phantom stock or
similar rights with respect to CBF.
(c) CBF Subsidiaries. Except for FINB (and other interim
national banking associations organized to facilitate consummation of the
mergers referred to in Sections 6(a)(xiii) and 6(b)(xi)), which at the
Effective Time of the Merger will be organized as a wholly-owned subsidiary of
CBF, CBF has no Subsidiary or Subsidiaries.
(d) Authorization of Transaction. CBF has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided, however,
that CBF cannot consummate the Merger unless and until all requisite approvals
are received from the Regulatory Authorities. Subject to the foregoing
sentence, (i) this Agreement has been duly executed and delivered by CBF and
this Agreement constitutes a valid and binding agreement of CBF, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally,
general equitable principles and the discretion of courts in granting equitable
remedies, (ii) the performance by CBF of its obligations under this Agreement
and the consummation of the Merger and the other transactions provided for
under this Agreement have been or will be duly and validly authorized by all
necessary corporate action on the part of CBF, and (iii) the Board of Directors
of CBF has approved the execution, delivery and performance of this Agreement
and the consummation of the Merger and the other transactions provided for
under this Agreement. Other than to or from the Regulatory Authorities or to or
from the IRS or the PBGC with respect to any employee benefit plans, CBF does
not need to give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement, except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a material adverse effect on
the Condition of CBF on a consolidated basis.
(e) Noncontravention. Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby, will (i) subject to the receipt of the approvals contemplated in
Section 4(d) above, violate any statute, regulation, rule, judgment, order,
decree, stipulation, injunction, charge, or other restriction of any
government, governmental agency, or court to which CBF is subject or any
provision of the Articles of Incorporation or Bylaws of CBF or (ii) with the
passing of time or the giving of notice or both, conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any contract, lease, sublease, license, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of
indebtedness, Security Interest, or other obligation to which CBF is a party or
by which it is bound or to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets) except where the
violation, conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice, or Security Interest would not have a
material adverse effect on the Condition of CBF on a consolidated basis.
(f) Statements True and Correct. No representation or
warranty made by CBF in this Agreement, no written statement or certificate
included in an Exhibit or Schedule by CBF in connection with this Agreement,
and no written statement or certificate to be furnished by CBF to First
National/Polk pursuant to this Agreement contains any untrue statement of
material fact or omits to state a material fact necessary to make the
statements made, in the light of the circumstances under which they were made,
not misleading. None of the information supplied or to be supplied by CBF for
inclusion in the definitive proxy materials to be mailed to First National/Polk
shareholders in connection with the Special First National/Polk Meeting (as
defined in Section 5(b)(iii)), or in any other documents to be filed with any
Regulatory Authority in connection with
17
22
the transactions contemplated hereby, will at the respective time such
documents are filed fail to comply in all material respects with the laws and
rules and regulations applicable to CBF, contain any untrue statement of a
material fact, or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. All documents that CBF is responsible for filing with any
Regulatory Authority in connection with the Merger will comply as to form in
all material respects with the provisions of applicable law.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Covenants. Except as otherwise set forth in the
Disclosure Schedules, the Parties agree as follows with respect to the period
from and after the execution of this Agreement until the earlier of the
consummation of the transactions contemplated by this Agreement or the
termination of this Agreement:
(a) Current Information. During the period from the date of
this Agreement to the Effective Time of the Merger, each Party shall, and shall
cause its representatives to, confer on a regular and frequent basis with
representatives of the other. Within twenty (20) days after the end of each
calendar month beginning after the date of this Agreement, each of First
National/Polk and CBF shall deliver to the other copies of their respective
unaudited balance sheets and statements of income, and any other financial or
statistical information submitted by management to the Board of Directors of
First National/Polk or CBF (other than information provided to a Board of
Directors specifically in connection with its consideration of the Merger, this
Agreement, and the transactions contemplated hereby) for or in the preceding
fiscal month. All such financial statements shall be prepared in accordance
with the books and records of such Party, shall be complete and accurate in all
material respects, shall present fairly the financial position and the results
of operations of that Party as of and for the periods indicated, and shall be
prepared in accordance with GAAP, subject to normal recurring year-end
adjustments and the absence of certain footnote information in the unaudited
statements.
(b) Regulatory Matters and Approvals.
(i) Bank Regulatory Matters. CBF and First
National/Polk shall cause to be promptly prepared and filed with the FRB, the
FDIC, and the OCC, applications for their approval of the Merger and with any
other Regulatory Authority having jurisdiction any other applications for
approvals or Consents which may be necessary for the consummation of the
Merger. The Parties shall provide copies of all such applications and notices
to the others for review prior to submission or filing with the appropriate
Regulatory Authorities. Each Party agrees to promptly review and provide any
comments on such applications and notices to the others. Each Party shall use
its best efforts to take or cause to be taken all actions necessary for such
applications and notices to be approved and shall provide the others with
copies of all correspondence and notices to or from such agencies concerning
such applications and notices. No Consent obtained which is necessary to
consummate the transactions contemplated by this Agreement shall be conditioned
or restricted in a manner which in the reasonable judgment of a Party would (A)
unduly impair or restrict the operations, or would have a material adverse
effect on the Condition, of CBF or the Surviving Bank, or (B) render
consummation of the Merger unduly burdensome; provided, that such Party has
used its reasonable efforts (it being understood that such reasonable efforts
shall not include the threatening or commencement of any litigation) to cause
such conditions or restrictions to be removed or modified as appropriate.
18
23
(ii) Definitive Proxy Materials. First National/Polk
shall prepare a proxy statement which shall consist of the First National/Polk
definitive proxy materials relating to the Special First National/Polk Meeting
(the "Proxy Statement"). The Proxy Statement shall contain the affirmative
recommendation of the Board of Directors of First National/Polk in favor of the
adoption of this Agreement and the approval of the Merger. CBF shall provide to
First National/Polk such information and assistance in connection with the
preparation of the Proxy Statement as First National/Polk may reasonably
request. First National/Polk shall not be liable for any untrue statement of a
material fact or omission to state a material fact in the Proxy Statement made
in reliance upon, or in conformity with, information furnished to First
National/Polk by CBF for use therein. In connection with the Special First
National/Polk Meeting, the Parties shall file the proxy statement with such
Regulatory Agencies as may be required by law in order for such materials to be
furnished to First National/Polk shareholders in connection with such meeting.
(iii) Shareholder Approvals. First National/Polk shall
call a special meeting of its shareholders (the "Special First National/Polk
Meeting") and mail to them the Proxy Statement (as soon as reasonably
practicable following a determination by First National/Polk and CBF that such
special meeting should be called) in order that First National/Polk
shareholders may consider and vote upon the adoption of this Agreement and the
approval of the Merger in accordance with applicable law. CBF, as sole
shareholder of FINB, agrees to vote in favor of adoption of this Agreement and
approval of the Merger.
(iv) Securities Act Matters. CBF will prepare and
file with the SEC a Registration Statement under the Securities Act in
connection with the CBF Shares to be issued to First National/Polk shareholders
in the Merger. First National/Polk and CBF shall each promptly furnish all
information concerning it and the holders of its outstanding shares as the
other may reasonably request from time to time in connection with the
preparation of the Registration Statement. The Parties shall use their
reasonable efforts to cause the Registration Statement to become effective
under the Securities Act as soon as reasonably practicable after the filing
thereof and to take any action required to be taken under applicable state,
Blue Sky or securities laws in connection with the issuance of the CBF Shares
upon consummation of the Merger.
(v) Other Governmental Matters. Subject to the last
sentence of Section 5(b)(i), each of the Parties shall take any additional
action that may be necessary, proper, or advisable in connection with any other
notice to, filings with, and authorizations, consents, and approvals of
governments and governmental agencies that it may be required to give, make or
obtain in connection with the transactions contemplated by this Agreement.
(c) Tax Opinion. On or before the date the Proxy Statement
is mailed to First National/Polk shareholders, First National/Polk and CBF
shall each use all reasonable efforts to obtain a written opinion from an
accounting or law firm selected by First National/Polk and CBF, to the effect
that the exchange of First National/Polk Shares, to the extent exchanged for
CBF Shares as contemplated herein, shall not give rise to gain or loss to the
holders of such First National/Polk Shares, or gain or loss to CBF with respect
to such exchange (except to the extent of any cash paid in lieu of fractional
shares), and accordingly, the Merger will constitute a tax-free reorganization
within the meaning of Section 368(a) of the Internal Revenue Code (the "Tax
Opinion"). The Tax Opinion shall be reasonably satisfactory to each of First
National/Polk and CBF in form and substance.
(d) Conduct of Business Prior to the Effective Time of the
Merger. During the period from the date of this Agreement to the Effective Time
of the Merger, except as set forth in the First National/Polk or CBF Disclosure
Schedules, or with the prior written consent of the other Parties, or as
expressly contemplated or permitted by this Agreement, each of First
National/Polk
19
24
and CBF shall (i) conduct its business in, and only in, the usual, regular and
ordinary course consistent with past practices, (ii) use its reasonable best
efforts to maintain and preserve intact its business organization, employees
and advantageous business relationships and retain the services of its officers
and key employees, and (iii) take no action which would materially adversely
affect or delay the ability of any Party to obtain any necessary approvals of
any Regulatory Authority or other governmental authority required for the
transactions contemplated hereby or to perform its covenants and agreements
under this Agreement.
(e) Forbearance. During the period from the date of this
Agreement to the Effective Time of the Merger, except as set forth in the First
National/Polk or CBF Disclosure Schedules, or except as expressly contemplated
or permitted by this Agreement, no Party shall, or permit its Subsidiaries to,
without the prior written consent of the other Parties:
(i) Other than in the Ordinary Course of Business,
incur any indebtedness for borrowed money (other than short-term indebtedness
incurred to refinance short-term indebtedness; it being understood and agreed
that incurrence of indebtedness in the Ordinary Course of Business shall
include, without limitation, the creation of deposit liabilities, purchases of
federal funds, sales of certificates of deposit and entering into repurchase
agreements), assume, guarantee, endorse or otherwise as an accommodation become
responsible for the obligations of any other individual, corporation or other
entity, or make any loan or advance other than in the Ordinary Course of
Business;
(ii) Adjust, split, combine or reclassify any capital
stock; make, declare or pay any dividend (except in accordance with past
practice) or make any other distribution on, or directly or indirectly redeem,
purchase or otherwise acquire, any shares of its capital stock or any
securities or obligations convertible into or exchangeable for any shares of
its capital stock, or, grant any stock options or stock appreciation rights or
grant any individual, corporation or other entity any right to acquire any
shares of its capital stock;
(iii) Sell, transfer, mortgage, encumber or otherwise
dispose of any of its material properties or assets to any individual,
corporation or other entity, or cancel, release or assign any material
indebtedness to any such person or any claims held by any such person, except
(A) in the Ordinary Course of Business, or (B) as set forth in a Disclosure
Schedule pursuant to contracts or agreements in force at the date of this
Agreement;
(iv) Except for transactions in the Ordinary Course of
Business, make any material investment in, either by purchase of stock or
securities, contributions to capital, property transfers, or purchase of
property or assets, any other individual, corporation or other entity;
(v) Except for transactions in the Ordinary Course of
Business, enter into or terminate any material contract or agreement, or make
any change in any of its material leases or contracts, other than renewals of
contracts and leases without material adverse changes of terms;
(vi) Increase in any material manner the compensation
or fringe benefits of any of its employees or pay any bonus or pension or
retirement allowance not required by any existing plan or agreement to any such
employees, or become a party to, amend or commit itself to any pension,
retirement, profit-sharing or welfare benefit plan or agreement or employment
agreement with or for the benefit of any employee, other than in the Ordinary
Course of Business (except that First National/Polk may amend the stock option
plans pursuant to which the First National/Polk Options were issued to provide
that the First National/Polk Options shall not terminate as a result of the
Merger); with the understanding that entering into any new employment
contracts,
20
25
or renewing or amending any existing employment contracts, shall be deemed
outside the Ordinary Course of Business;
(vii) Amend its Articles of Incorporation, Articles of
Association, or its bylaws;
(viii) Enter into any new line of business;
(ix) Change its lending, investment, asset/liability
management or other material banking policies in any respect which is material,
including without limitation, policies and procedures relating to calculating
and funding the Allowance;
(x) Incur or commit to any capital expenditure or any
obligations or liabilities in connection therewith other than capital
expenditures and obligations or liabilities incurred or committed to in the
Ordinary Course of Business;
(xi) Change its methods of accounting in effect at
December 31, 1998, except as required by generally accepted accounting
principles, or its fiscal year; or
(xii) Agree to, or make any commitment to, take any of
the actions prohibited by this Section 5(e).
(f) Issuance of Securities. Except as set forth in a
Disclosure Schedule or as contemplated by this Agreement, no Party shall or
shall permit any of its Subsidiaries to issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock of
any class, any voting debt or any securities convertible into or exercisable
for or any rights, warrants or options to acquire, any such shares or voting
debt, or enter into any agreement with respect to any of the foregoing, other
than (i) the issuance of First National/Polk Shares, pursuant to outstanding
First National/Polk Options, in each case as in effect on the date of this
Agreement and in each case in accordance with their present terms; (ii) the
issuance of CBF Shares pursuant to outstanding CBF Options or CBF Warrants, in
each case as in effect on the date of this Agreement and in each case in
accordance with their present terms; (iii) issuances by a Subsidiary of its
capital stock to its parent; and (iv) the issuance by a Party of any shares of
its capital stock in a transaction approved by the Parties pursuant to Section
5(g).
(g) No Acquisitions. Other than acquisitions which may be
mutually agreed upon in writing by the Parties, no Party shall or shall permit
any of its Subsidiaries to acquire or agree to acquire, by merging or
consolidation with or by purchasing a substantial equity interest in, or by
purchasing a substantial portion of the assets, or assuming a substantial
portion of the liabilities of, or by any other manner, any business or any
corporation, partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire any assets in each
case which are material, individually or in the aggregate, to such Party and
its Subsidiaries taken as a whole; provided, however, that the foregoing shall
not prohibit (i) internal reorganizations, consolidations or dissolutions
involving only existing Subsidiaries, (ii) foreclosure and other acquisitions
related to previously contracted debt, in each case in the Ordinary Course of
Business, (iii) acquisitions of control by First National/Polk in its fiduciary
capacity, (iv) investments made by small business investment corporations,
acquisitions of financial assets and merchant banking activities, in each case
in the Ordinary Course of Business, or (v) the creation of new Subsidiaries
organized to conduct or continue activities otherwise permitted by this
Agreement.
(h) Other Actions. No Party shall or shall permit any of its
Subsidiaries to take any action that, or fail to take any action the failure of
which, results in any of its representations and
21
26
warranties set forth in this Agreement being or becoming untrue in any material
respect, or in any of the conditions set forth in this Agreement not being
satisfied or in a violation of any provision of this Agreement which would
adversely affect the ability of any of them to obtain any of the Regulatory
Approvals, except in every case as may be required by applicable law.
(i) Government Filings. Each Party shall file all reports,
applications and other documents required to be filed with the appropriate bank
regulators between the date hereof and the Effective Time of the Merger and
shall make available to the other Party copies of all such reports promptly
after the same are filed.
(j) Tax-Free Reorganization Treatment. No Party shall take or
cause to be taken any action, whether before or after the Effective Time of the
Merger, which would disqualify the Merger as a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code.
(k) Full Access. Each Party shall and shall cause each of its
Subsidiaries to permit representatives of the others to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of such Party and its Subsidiaries, to all premises,
properties, books, records, contracts, tax records, and documents of or
pertaining to each of such Party and its Subsidiaries. Each Party agrees to
furnish any other Party and its advisers with such financial operating data and
other information with respect to its business, properties and employees as
such Party shall, from time to time, reasonably request. No investigation by a
Party shall affect the representations and warranties of any other Party to
this Agreement, and each such representation and warranty shall survive any
such investigation.
(1) Notice of Material Adverse Developments. Each Party shall
give prompt written notice to the other Parties of any material adverse effect
on its Condition, or any material adverse development affecting the assets,
liabilities, business, financial condition, operations, results of operations,
or future prospects of such Party and its Subsidiaries taken as a whole,
including without limitation (i) any material change in its business or
operations, (ii) any material complaints, investigations or hearings (or
communications indicating that the same may be contemplated) of any Regulatory
Authority, (iii) the institution or the threat of material litigation involving
such Party, or (iv) any event or condition that might be reasonably expected to
cause any of such Party's representations and warranties set forth herein not
to be true and correct in all material respects as of the Closing Date. Each
Party shall also give prompt written notice to the other Parties of any other
material adverse development affecting the ability of such Party to consummate
the transactions contemplated by this Agreement. Any such notices shall be
accompanied by copies of any and all pertinent documents, correspondence and
similar papers relevant to a complete understanding of such material adverse
development, which shall be promptly updated as necessary. CBF shall have 20
business days after First National/Polk gives any written notice pursuant to
this Section 5(l) within which to exercise any right CBF may have to terminate
this Agreement pursuant to Section 7(a)(iv) below by reason of the material
adverse development, and First National/Polk likewise shall have 20 business
days after CBF gives any written notice pursuant to this Section 5(l) within
which to exercise any right First National/Polk may have to terminate this
Agreement pursuant to Section 7(a)(iii) below by reason of the material adverse
development. Unless one of the Parties terminates this Agreement within the
aforementioned period, the written notice of a material development shall be
deemed to have amended the Disclosure Schedule, to have qualified the
representations and warranties contained herein, and to have cured any
misrepresentation or breach of warranty that otherwise might have existed
hereunder by reason of the material adverse development.
(m) Exclusivity. Except as specifically permitted or
contemplated by this Agreement, the Parties shall not (and shall not cause or
permit any of their Subsidiaries to) solicit,
22
27
initiate, encourage, entertain, consider, or participate in the negotiation,
discussion or submission of any proposal or offer from any person (other than a
Party) relating to any (i) liquidation, dissolution, or recapitalization, (ii)
merger or consolidation, (iii) acquisition or purchase of 25% or more of
securities or assets, or (iv) similar transaction or business combination
involving any of the Parties and/or its Subsidiaries, or their respective
assets (the foregoing transactions referred to in subclauses (i) through (iv),
inclusive, are referred to in this Agreement as an "Acquisition Proposal");
provided, however, that each Party shall be entitled to entertain, consider,
and participate in negotiations and discussions regarding, and furnish any
information with respect to, any effort or attempt by any person to do or seek
to do any of the foregoing to the extent that the Board of Directors of such
Party determines in good faith, based upon the written advice of its legal
counsel, that the failure to so consider or participate in such negotiations or
discussions would be inconsistent with the fiduciary obligations of the
directors of such Party to the shareholders of such Party. The Party shall give
all of the other Parties prompt notice of any such negotiations and
discussions. Each Party shall notify others immediately if any person (other
than a Party) makes any proposal, offer, inquiry, or contact with respect to
any Acquisition Proposal.
(n) Filings with the Offices. Upon the terms and subject to
the conditions of this Agreement, the Parties shall execute and file any and
all documents in connection with the Merger for filing with any Federal and
state offices.
(o) Press Releases. Each Party shall consult with each other
as to the form and substance of any press release or other public disclosure
materially related to this Agreement, the Merger or any other transaction
contemplated hereby; provided, however, that any Party may make any public
disclosure it believes in good faith is required by law or regulation.
(p) Agreements of Affiliates. First National/Polk shall
deliver to CBF a letter identifying all persons whom First National/Polk
believes to be, at the time the Merger is submitted to a vote of the First
National/Polk shareholders, "affiliates" of First National/Polk for purposes of
Rule 145 under the Securities Act. First National/Polk shall use its best
efforts to cause each person who is identified as an "affiliate" in the letter
referred to above to deliver to CBF prior to the Effective Time of the Merger a
written agreement providing that each such person shall agree not to sell,
transfer or otherwise dispose of the CBF Shares to be received by such person
in the Merger, except in compliance with the applicable provisions of the
Securities Act and until such time as the financial results covering at least
30 days of combined operations of CBF and First National/Polk have been
published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies. Prior to the Effective Time of the Merger, First
National/Polk shall amend and supplement such letter and use its reasonable
best efforts to cause each additional person who is identified as an
"affiliate" to execute a written agreement as set forth in this Section 5(p).
(q) Miscellaneous Agreements and Consents. Subject to the
terms and conditions of this Agreement, each of the Parties hereto agrees to
use its respective best efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement as expeditiously as reasonably
practicable, including, without limitation, using their respective reasonable
best efforts to lift or rescind any injunction or restraining order or other
order adversely affecting the ability of the Parties to consummate the
transactions contemplated hereby. Each Party shall, and shall cause each of
their respective Subsidiaries to, use their reasonable best efforts to obtain
all approvals and Consents of all third parties and Regulatory Authorities
necessary or, in the reasonable opinion of any Party, desirable for the
consummation of the transactions contemplated by this Agreement. No Consent
obtained which is necessary to consummate the transactions contemplated by this
Agreement shall be conditioned or restricted in a manner which in the
reasonable judgment of a Party would (A) unduly impair or restrict the
23
28
operations, or would have a material adverse effect on the Condition, of CBF or
the Surviving Bank, or (B) render consummation of the Merger unduly burdensome;
provided, that such Party has used its reasonable efforts (it being understood
that such reasonable efforts shall not include the threatening or commencement
of any litigation) to cause such conditions or restrictions to be removed or
modified as appropriate.
(r) Indemnification.
(i) After the Effective Time of the Merger, CBF
shall cause the Surviving Bank to indemnify, defend and hold harmless the
present and former officers, directors, employees and agents of First
National/Polk (each, an "Indemnified Party") after the Effective Time of the
Merger against all losses, expenses, claims, damages or liabilities arising out
of actions or omissions occurring on or prior to the Effective Time of the
Merger (including, without limitation, the transactions contemplated by this
Agreement) to the full extent then permitted under, and in accordance with the
terms and conditions of, the Florida Business Corporation Act and by the
Articles of Association and Bylaws of First National/Polk as in effect on the
date hereof, including provisions relating to advances of expenses incurred in
the defense of any action or suit. CBF shall cause the Surviving Bank to apply
such rights of indemnification in good faith and to the fullest extent
permitted by applicable law.
(ii) If the Surviving Bank or any of its successors
or assigns (A) shall consolidate with or merge into any other corporation or
entity and shall not be the continuing or surviving corporation or entity of
such consolidation or merger, or (B) shall transfer all or substantially all of
its properties and assets to any individual, corporation or other entity, then
and in each such case, CBF shall cause the Surviving Bank to cause proper
provision to be made so that the successors and assigns of the Surviving Bank
shall assume the obligations set forth in this Section 5(r).
(s) Fairness Opinions. On or before 10 days prior to the
date of the Proxy Statement, (i) First National/Polk shall use all reasonable
efforts to obtain an opinion from a firm selected by it that the terms of the
Merger are fair to First National/Polk shareholders from a financial point of
view (the "First National/Polk Fairness Opinion"), and (ii) CBF shall have the
right to obtain an opinion from a firm selected by it that the terms of the
Merger are fair to CBF shareholders from a financial point of view (the "CBF
Fairness Opinion").
(t) Employee Benefit Plans. First National/Polk and CBF
shall use their best efforts to coordinate the conversion of each First
National/Polk Benefit Plan into similar plans of the Surviving Bank, to the
extent similar plans are maintained by the Surviving Bank, and to make
available for eligibility for First National/Polk employees all benefit plans
and policies maintained by the Surviving Bank following the Effective Time of
the Merger with such employees receiving credit for past service with a Party
prior to the Effective Time of the Merger for purposes of eligibility for
participation, vesting, and years of service, under such benefit plans and
policies.
24
29
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF FIRST NATIONAL/POLK AND CBF
Section 6.1 Conditions to Obligation to Close.
(a) Conditions to Obligation of CBF. The obligation of CBF
to consummate the transactions to be performed by it in connection with the
Closing are subject to satisfaction of the following conditions:
(i) This Agreement and the Merger shall have
received the requisite approval of the shareholders of First National/Polk and
the number of Dissenting First National/Polk Shares shall not exceed 5% of the
number of First National/Polk Shares issued and outstanding immediately prior
to the Effective Time of the Merger;
(ii) The Parties shall have procured all approvals,
authorizations and Consents specified in Section 5(b) above and the Disclosure
Schedules, including but not limited to all necessary consents, authorizations
and approvals of Regulatory Authorities which, with respect to those from the
Regulatory Authorities, shall not contain provisions which (A) unduly impair or
restrict the operations, or would have a material adverse effect on the
Condition, of CBF or the Surviving Bank, or (B) render consummation of the
Merger unduly burdensome, in each case as determined in the reasonable
discretion of CBF;
(iii) The representations and warranties set forth in
Article III above shall be true and correct in all material respects at and as
of the Closing Date;
(iv) First National/Polk shall have performed and
complied in all material respects with all its covenants required to be
complied with hereunder through the Closing;
(v) No action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction wherein an unfavorable
judgment, order, decree, stipulation, injunction, or charge could (A) prevent
consummation of any of the transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, or (C) affect adversely the right after the Effective
Time of the Merger of the Surviving Bank to own, operate, or control
substantially all of the assets and operations of First National/Polk and/or
CBF to own, operate, or control substantially all of the assets and operations
of the Surviving Bank (and no such judgment, order, decree, stipulation,
injunction, or charge shall be in effect);
(vi) The shareholders' equity of First National/Polk
on the last day of the calendar month immediately preceding the Closing Date,
as determined in accordance with GAAP before any adjustments required pursuant
to Statement of Financial Accounting Standards No. 115 ("FAS 115"), shall not
be less than the amount set forth in the September 30,1999 First National/Polk
Financial Statements;
(vii) First National/Polk shall have delivered to CBF
a certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified above in Section
6(a)(i) through (vi) is satisfied in all respects;
(viii) All actions to be taken by First National/Polk
in connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments,
25
30
and other documents required to effect the transactions contemplated hereby
shall be reasonably satisfactory in form and substance to CBF;
(ix) CBF shall have received the Tax Opinion in a
form reasonably satisfactory to CBF;
(x) CBF shall have received the CBF Fairness
Opinion;
(xi) CBF shall have received a letter, dated as of
the Effective Time of the Merger, from an accounting firm selected by CBF and
First National/Polk to the effect that the Merger will qualify for
pooling-of-interests accounting treatment if closed and consummated in
accordance with this Agreement; and
(xii) CBF shall close simultaneously with the
Effective Time of the Merger the acquisitions by CBF of First National Bank of
Osceola County and Community National Bank of Pasco County.
CBF may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of First National/Polk. The
obligations of First National/Polk to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of
the following conditions:
(i) This Agreement and the Merger shall have
received the requisite approval of the shareholders of First National/Polk and
the number of Dissenting First National/Polk Shares shall not exceed 5% of the
number of First National/Polk Shares issued and outstanding immediately prior
to the Effective Time of the Merger;
(ii) The Parties shall have procured all of the third
party approvals, authorizations and consents specified in Section 5(b) above,
and the Disclosure Schedules, including but not limited to all necessary
consents, authorizations and approvals of Regulatory Authorities which, with
respect to those from the Regulatory Authorities, shall not contain provisions
which (A) unduly impair or restrict the operations, or would have a material
adverse effect on the Condition, of CBF or the Surviving Bank, or (B) render
consummation of the Merger unduly burdensome, in each case as determined in the
reasonable discretion of First National/Polk;
(iii) The representations and warranties set forth in
Article IV above shall be true and correct in all material respects at and as
of the Closing Date;
(iv) CBF shall have performed and complied in all
material respects with all its covenants required to be complied with hereunder
through the Closing;
(v) No action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction wherein an unfavorable
judgment, order, decree, stipulation, injunction, or charge could (A) prevent
consummation of any of the transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, or (C) affect adversely the right after the Effective
Time of the Merger of the Surviving Bank, to own, operate, or control
substantially all of the assets and operations of First National/Polk (and no
such judgment, order, decree, stipulation, injunction or charge shall be in
effect);
26
31
(vi) CBF shall have delivered to First National/Polk
a certificate (without qualification as to knowledge or materiality or
otherwise) to the effect that each of the conditions specified in Section
6(b)(i) through (vii) is satisfied in all respects;
(v) All actions to be taken by CBF in connection
with consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and substance to
First National/Polk;
(vi) First National/Polk shall have received the Tax
Opinion in a form reasonably satisfactory to First National/Polk; and
(vii) CBF shall close simultaneously with the
Effective Time of the Merger the acquisitions by CBF of First National Bank of
Osceola County and Community National Bank of Pasco County.
First National/Polk may waive any condition specified in this Section
6(b) if it executes a writing so stating at or prior to the Closing.
ARTICLE VII
TERMINATION
Section 7.1 Termination.
(a) Termination of Agreement. Any of the Parties may
terminate this Agreement with the prior authorization of its Board of Directors
(whether before or after approval of its or any other Party's shareholders) as
provided below:
(i) The Parties may terminate this Agreement by
mutual written consent at any time prior to the Effective Time of the Merger;
(ii) CBF may terminate this Agreement by giving
written notice to First National/Polk at any time prior to the Effective Time
of the Merger in the event First National/Polk is in breach, and First
National/Polk may terminate this Agreement by giving written notice to CBF at
any time prior to the Effective Time of the Merger in the event CBF or FINB is
in breach, of any representation, warranty, or covenant contained in this
Agreement in any material respect. Each Party shall have the right to cure any
such breach, if such breach is capable of being cured, within 15 days after
receipt of written notice of such breach or within any such longer period
mutually agreed to in writing by the Parties hereto ("Cure Period"); provided,
however, that in no event shall the Cure Period extend beyond December 31,
2000;
(iii) If a material adverse development shall have
occurred affecting the Condition of CBF on a consolidated basis, First
National/Polk may terminate this Agreement by giving written notice to CBF;
(iv) If a material adverse development shall have
occurred affecting the Condition of First National/Polk, CBF may terminate this
Agreement by giving written notice to First National/Polk;
27
32
(v) First National/Polk and CBF each may terminate
this Agreement by giving written notice to the other Party at any time after
(i) the First National/Polk Special Meeting in the event this Agreement or the
Merger fails to receive the requisite First National/Polk shareholder approval,
or (ii) the denial, and any final appeal or rehearing thereof (or if any denial
by such authority is not appealed within the time limit for appeal), of any
approval from a Regulatory Authority necessary to permit the Parties to
consummate the Merger and the transactions contemplated by this Agreement or if
any Consent shall be conditioned or restricted in the manner provided in the
last sentence of Section 5(b)(i); and
(vi) Any Party may terminate this Agreement by
giving written notice to the other Parties at any time after December 31, 2000
if the Effective Time of the Merger has not yet then occurred and such
termination was approved by a two-thirds vote of such Party's full Board of
Directors.
(b) Effect of Termination. If any Party terminates this
Agreement pursuant to Section 7(a) above, all obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); provided, however, that
the confidentiality provisions contained in Section 5(k) above, and the expense
provisions in 8(k) below, shall survive any such termination.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Miscellaneous.
(a) Survival. None of the representations, warranties, and
covenants of the Parties (other than the provisions in Article II above
concerning issuance of CBF Shares and the provisions in Section 5(r) above
concerning insurance and indemnification) shall survive the Effective Time of
the Merger.
(b) No Third Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns; provided, however, that (i) the
provisions in Article II above concerning issuance of CBF Shares are intended
for the benefit of First National/Polk shareholders and (ii) the provisions in
Section 5(r) above concerning insurance and indemnification are intended for
the benefit of the individuals specified and their respective legal
representatives.
(c) Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or representations
by or among the Parties, written or oral, that may have related in any way to
the subject matter hereof.
(d) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of the other Parties.
28
33
(e) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(f) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including telex and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
delivered by facsimile transmission, or mailed (airmail if international) by
registered or certified mail (postage prepaid), return receipt requested,
addressed to:
If to CBF or FINB: Xxxxx X. Xxxxx
Chairman of the Board, President and Chief
Executive Officer
Centerstate Banks of Florida, Inc.
0000 Xxxxx Xxxx 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
If to First National/Polk: Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
First National Bank of Polk County
0000 XX 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
and, in all cases, with copies to: Xxxx X. Xxxxxxx, Esquire
Smith, Mackinnon, Greeley, Bowdoin,
Edwards, Xxxxxxxx & Marks, P.A.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address as any Party may designate by notice complying with
the terms of this Section. Each such notice shall be deemed delivered (a) on
the date delivered if by hand delivery; (b) on the date of transmission with
confirmed answer back if by telex, facsimile or other telegraphic method; and
(c) on the date upon which the return receipt is signed or delivery is refused
or the notice is designated by the postal authorities as not deliverable, as
the case may be, if mailed.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to principles of conflict of laws.
(i) Amendments and Waivers. To the extent permitted by law,
the Parties may amend any provision of this Agreement at any time prior to the
Effective Time of the Merger by a subsequent writing signed by each of the
Parties upon the approval of their respective Boards of Directors; provided,
however, that after approval of this Agreement by a Party's shareholders, there
shall be made no amendment in the Conversion Ratio in a manner that adversely
affects the
29
34
economic value of the Merger to such shareholders without their further
approval. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by all of the Parties. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the remaining terms and provision
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Parties agree that the court making the
termination of invalidity or unenforceability shall have the power to reduce
the scope, duration, or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provisions with
a term or provisions that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(k) Expenses. Each Party shall bear its own expenses in
connection with the negotiation and execution of this Agreement and the
implementation and effectiveness of the Merger. Notwithstanding the foregoing,
if any legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
successful or prevailing Party or Parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such Party or Parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees,
investigative fees, administrative costs, sales and use taxes and all other
charges billed by the attorney to the prevailing Party.
(l) Construction. The language used in this Agreement shall
be deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Party. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context otherwise requires.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(n) Jurisdiction and Venue. The Parties acknowledge that a
substantial portion of negotiations and anticipated performance and execution
of this Agreement occurred or shall occur in Polk County, Florida, and that,
therefore, without limiting the jurisdiction or venue of any other federal or
state courts, each of the Parties irrevocably and unconditionally (a) agrees
that any suit, action or legal proceeding arising out of or relating to this
Agreement may be brought in a state or federal court of record in Polk County;
(b) consents to the jurisdiction of each such Court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue
of any such suit, action or proceeding in any of such courts; and (d) agrees
that service of any court paper may be effected on such Party by mail, as
provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in said state.
30
35
(o) Remedies Cumulative. Except as otherwise expressly
provided herein, no remedy herein conferred upon any Party is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise. No
single or partial exercise by any Party of any right, power or remedy hereunder
shall preclude any other or further exercise thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
and have affixed their respective seals as of the date first above written,
each by its President and Chief Executive Officer and attested to by its
Cashier or Secretary, pursuant to a resolution of its Board of Directors,
acting by a majority.
CENTERSTATE BANKS OF FLORIDA, INC. FIRST NATIONAL BANK OF POLK
COUNTY
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------- -----------------------------------------
Xxxxx X. Xxxxx, Chairman of the Board Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer President and Chief Executive Officer
Attest: Attest:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxx
---------------------------------------- -----------------------------------------
Xxxxxx X. Xxxxxxxx, Secretary Xxxx X. Xxxxxx, Cashier
STATE OF FLORIDA
COUNTY OF POLK
The foregoing instrument was acknowledged before me this 10th day of
December, 1999, by Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxxx, Chairman of the
Board, President and Chief Executive Officer, and Secretary, respectively, of
Centerstate Banks of Florida, Inc.
/s/ Xxxx X. Xxxxxxx
------------------------------------------
Printed Name: /s/ Xxxx X. Xxxxxxx
-----------------------------
Notary Public, State of Florida
Personally Known [X] or Produced Identification [ ]
Type of Identification Produced
---------------------------
31
00
XXXXX XX XXXXXXX
XXXXXX XX XXXX
The foregoing instrument was acknowledged before me this 10th day of
December, 1999, by Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxx, President and Chief
Executive Officer, and Cashier, respectively, of First National Bank of Polk
County.
/s/ Xxxxxxx Xxxxx
------------------------------------------
Printed Name: /s/ Xxxxxxx Xxxxx
----------------------------
Notary Public, State of Florida
Personally Known [X] or Produced Identification [ ]
Type of Identification Produced
----------------------------
32
37
JOINDER
First Interim National Bank of Polk County hereby joins in the foregoing
Agreement, undertakes that it be bound thereby and that it will duly perform
all the acts and things therein referred or provided to be done by it.
IN WITNESS WHEREOF, First Interim National Bank of Polk County has
caused this undertaking to be made by its duly authorized officers as of this
____ day of _____________,______.
FIRST INTERIM NATIONAL BANK OF
POLK COUNTY
-----------------------------------------
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
Attest:
-----------------------------------------
Xxxx X. Xxxxxx, Cashier
STATE OF FLORIDA
COUNTY OF POLK
The foregoing instrument was acknowledged before me this _____ day of
__________, _____, by Xxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxx, President and
Chief Executive Officer, and Cashier, respectively, of First Interim National
Bank of Polk County.
-------------------------------------
Printed Name:
------------------------
Notary Public, State of Florida
Personally Known [ ] or Produced Identification [ ]
Type of Identification Produced
----------------------------
33
38
SCHEDULE 1.4
TO
AGREEMENT TO MERGE
NAMES AND ADDRESSES OF DIRECTORS AND EXECUTIVE OFFICERS
OF SURVIVING BANK
DIRECTORS EXECUTIVE OFFICERS
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxx Xxxx X. Xxxxxx
P. O. Box 622 000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx 00 Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxxx Xxxxx X. Xxxxx
0000 Xxxxx Xx 000 P. O. Xxx 000
Xxxxxx Xxxxx, XX 00000 Xxxxxx Xxxx, XX 00000-0000
Xxxx X. Xxxxx
00000 Xxxxxxxx Xx.
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxx, Xx.
000 Xxxxxxxx Xxxx.
Xxxx Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxx
0000 XX Xxx 00 X
Xxxxxx Xxxx, XX 00000
Xxxxx X. XxXxxxxx
P. O. Xxx 000
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxx, Xx.
P. O. Xxx 000
Xxxxxxxx, XX 00000
X. Xxxxxx Rocker
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxx X. Xxxx
000 Xxxxx Xxxx
Xxxxxx Xxxx, XX 00000
39
Xxxxx X. Xxxxxxxxx, Xx.
00 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xxxxx X. Xxxxx
X.X. Xxx 000
Xxxxxx Xxxx, XX 00000-0000
40
SCHEDULE 1.6
TO
AGREEMENT TO MERGE
CAPITALIZATION OF SURVIVING BANK
The capital stock, capital surplus and retained earnings of the
Surviving Bank shall be the following amounts adjusted, however, for earnings
and expenses and shares issued between September 30, 1999 and the Effective
Time of the Merger:
Common Stock, $5.00 par value; 5,000,000
shares authorized; 475,625 shares issued and
outstanding $2,378,125
Capital surplus 2,422,422
Net unrealized gains/losses on securities held
as available-for-sale (46,329)
Retained earnings 1,725,325
----------
Total Shareholders' Equity $6,479,543
==========