EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
UNION PLANTERS BANK, NATIONAL ASSOCIATION,
AND
REPUBLIC BANKING CORPORATION OF FLORIDA
DATED AS OF FEBRUARY 22, 1999
TABLE OF CONTENTS
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PARTIES.......................................................................1
PREAMBLE......................................................................1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER..................................2
1.1 Merger .....................................................2
1.2 Republic Dissolution .......................................2
1.3 Bank Merger ................................................2
1.4 Time and Place of Closing ..................................2
1.5 Effective Time .............................................3
1.6 Execution of Agreements ....................................3
1.7 Restructure of Transaction .................................3
ARTICLE 2 - TERMS OF MERGER AND BANK MERGER...................................4
2.1 Charter ....................................................4
2.2 Bylaws .....................................................4
2.3 Directors and Officers .....................................4
ARTICLE 3 - MANNER OF CONVERTING SHARES.......................................4
3.1 Conversion of Shares .......................................4
3.2 Anti-Dilution Provisions ...................................5
3.3 Shares held by Republic or UPBNA ...........................5
3.4 Dissenting Shareholders ....................................5
3.5 Settlement of Stock Options ................................6
ARTICLE 4 - EXCHANGE OF SHARES................................................6
4.1 Exchange Procedures ........................................6
4.2 Rights of Former Republic Shareholders .....................6
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF REPUBLIC........................7
5.1 Organization, Standing, and Power ..........................7
5.2 Authority, No Breach by Agreement ..........................7
5.3 Capital Stock ..............................................9
5.4 Republic Subsidiaries ......................................9
5.5 Financial Statements ......................................10
5.6 Absence of Undisclosed Liabilities ........................11
5.7 Absence of Certain Changes or Events ......................11
5.8 Tax Matters ...............................................11
5.9 Assets ....................................................13
5.10 Intellectual Property .....................................13
5.11 Environmental Matters .....................................14
5.12 Compliance With Laws ......................................14
5.13 Labor Relations ...........................................15
5.14 Employee Benefit Plans ....................................15
5.15 Material Contracts ........................................17
5.16 Legal Proceedings .........................................18
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5.17 Reports ...................................................18
5.18 Statements True and Correct ...............................18
5.19 Regulatory Matters ........................................19
5.20 Article Provisions ........................................19
5.21 Derivatives Contracts .....................................19
5.22 Year 2000 .................................................19
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF UPBNA..........................19
6.1 Organization, Standing, and Power .........................19
6.2 Authority; No Breach by Agreement .........................20
6.3 Compliance With Laws ......................................21
6.4 Legal Proceedings .........................................21
6.5 Statements True and Correct ...............................21
6.6 Regulatory Matters ........................................22
6.7 Financial Capacity ........................................22
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION.........................22
7.1 Affirmative Covenants of Republic .........................22
7.2 Negative Covenants of Republic ............................22
7.3 Covenants of UPBNA ........................................25
7.4 Adverse Changes in Condition ..............................25
7.5 Reports ...................................................25
ARTICLE 8 - ADDITIONAL AGREEMENTS............................................26
8.1 Proxy Statement; Shareholder Approvals ....................26
8.2 Applications ..............................................26
8.4 Agreement as to Efforts to Consummate .....................26
8.5 Investigation and Confidentiality .........................27
8.6 Press Releases ............................................27
8.7 Certain Actions ...........................................27
8.8 Employee Benefits and Contracts ...........................28
8.9 Indemnification ...........................................28
8.1 State Takeover Laws .......................................29
8.1 UPBNA Merger Subsidiary Organization ......................29
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE................30
9.1 Conditions to Obligations of Each Party ...................30
9.2 Conditions to Obligations of UPBNA ........................31
9.3 Conditions to Obligations of Republic .....................31
ARTICLE 10 - TERMINATION.....................................................32
10.1 Termination ...............................................32
10.2 Effect of Termination .....................................33
10.3 Non-Survival of Representations and Covenants ..............3
ARTICLE 11 - MISCELLANEOUS...................................................34
11.1 Definitions ...............................................34
11.2 Expenses ..................................................42
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11.3 Brokers and Finders .......................................42
11.4 Entire Agreement ..........................................42
11.5 Amendments ................................................42
11.6 Waivers ...................................................42
11.7 Assignment ................................................43
11.8 Notices ...................................................43
11.9 Governing Law .............................................44
11.1 Counterparts ..............................................44
11.1 Captions ..................................................44
11.1 Interpretations ...........................................44
11.1 Enforcement of Agreement ..................................45
11.1 Severability ..............................................45
SIGNATURES...................................................................46
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LIST OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION
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1. Form of Plan of Merger.
2. Form of Bank Plan of Merger.
3. Form of Termination Fee Agreement.
4. Form of Support Agreement.
5. Form of Supplemental Letter.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
and entered into as of February 22, 1999, by and between Republic Banking
Corporation of Florida, a Florida corporation having its principal office
located in Coral Gables, Florida ("Republic") and Union Planters Bank, National
Association, a national banking association having its principal office located
in Memphis, Tennessee ("UPBNA").
PREAMBLE
The Boards of Directors of Republic and UPBNA are of the opinion that
the transactions described herein are in the best interests of the parties and
their respective shareholders. This Agreement provides for the acquisition of
Republic by UPBNA pursuant to (i) the merger (the "Merger") of a newly-formed,
wholly-owned subsidiary of UPBNA ("UPBNA Merger Subsidiary") into and with
Republic, (ii) followed by the statutory dissolution of Republic (the "Republic
Dissolution"), and (iii) followed by the merger (the "Bank Merger") of Republic
National Bank of Miami ("Republic Bank"), a national banking association and a
majority-owned, first-tier subsidiary of Republic, into and with UPBNA. At the
effective time of the Merger, the Republic Dissolution, and the Bank Merger,
which shall occur on the same day but in the sequence provided for in the
preceding sentence, the outstanding shares of the common stock of Republic and
the outstanding shares of the common stock of Republic Bank not held by Republic
shall be cancelled and in consideration therefor holders of such outstanding
shares shall receive cash payments (without interest) from UPBNA (except as
provided herein). As a result, shareholders of Republic and Republic Bank shall
receive cash payments in exchange for their shares of Republic common stock and
Republic Bank common stock, respectively, and UPBNA shall continue to conduct
the business and operations of Republic Bank. For tax purposes, the Merger of
UPBNA Merger Subsidiary into and with Republic will be treated as a qualified
stock purchase under Section 338 of the Internal Revenue Code, and the
subsequent Republic Dissolution and the Bank Merger of Republic Bank into UPBNA
shall each be treated as a liquidation under Section 332 of the Internal Revenue
Code. For tax purposes, the cash payments to Republic Bank shareholders in
exchange for shares of Republic Bank common stock shall be treated as having
been contributed by UPBNA to the capital of Republic Bank and paid by Republic
Bank to the shareholders in exchange for their Republic Bank common stock. The
transactions described in this Agreement are subject to the approvals of the
shareholders of Republic, the shareholders of Republic Bank, the Board of
Governors of the Federal Reserve System, the Office of the Comptroller of the
Currency, and other applicable federal and state regulatory authorities, and the
satisfaction of certain other conditions described in this Agreement.
Immediately after the execution and delivery of this Agreement, as a
condition and inducement to UPBNA's willingness to enter into this Agreement,
(i) Republic and UPBNA are entering into a fee termination agreement pursuant to
which Republic is agreeing to pay a termination fee to UPBNA under certain
circumstances and (ii) Rebank Netherlands Antilles
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N.V., a major shareholder of Republic, and each of the directors of Republic are
entering into support agreements with UPBNA.
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1. MERGER. Subject to the terms and conditions of this Agreement, at
the Effective Time, UPBNA Merger Subsidiary shall be merged with and into
Republic in accordance with the provisions of Section 607.1101 of the FBCA and
with the effect provided in Section 607.1106 of the FBCA (the "Merger").
Republic shall be the Surviving Corporation resulting from the Merger and shall
continue to be governed by the Laws of the State of Florida. The Merger shall be
consummated pursuant to the terms of this Agreement, which has been approved and
adopted by the respective Boards of Directors of Republic and UPBNA and the Plan
of Merger, in substantially the form of Exhibit 1, which has been approved and
adopted by the Board of Directors of Republic and will be approved by the Board
of Directors of UPBNA Merger Subsidiary upon its organization.
1.2 REPUBLIC DISSOLUTION. Subject to the terms and conditions of this
Agreement, immediately subsequent to the Merger, Republic shall effect a
voluntary dissolution in accordance with the provisions of Section 607.1402 of
the FBCA (the "Republic Dissolution"). In connection with Republic Dissolution,
Republic shall (i) cease to carry on its business, except in so far as may be
necessary for winding up thereof, (ii) satisfy all outstanding debts and other
liabilities to its creditors, and (iii) distribute all remaining assets, within
one taxable year, to UPBNA in complete cancellation of the outstanding Republic
Common Stock pursuant to a plan of liquidation adopted herewith by Republic.
1.3 BANK MERGER. Subject to the terms and conditions of this Agreement
and the Bank Plan of Merger, immediately subsequent to the Republic Dissolution,
Republic Bank shall be merged with and into UPBNA in accordance with the
provisions of 12 U.S.C. Sections 215a and 215a-1. UPBNA shall be the Surviving
Bank of the Bank Merger and shall continue to be governed by the Laws of the
United States. The Bank Merger shall be consummated pursuant to the terms of the
Banks Plan of Merger, in substantially the form of Exhibit 2, which has been
approved and adopted by the Boards of Directors of Republic Bank and UPBNA.
1.4 TIME AND PLACE OF CLOSING. The Closing will take place at
9:00 A.M. on the date that the Effective Time occurs (or the immediately
preceding day if the Effective Time is earlier than 9:00 A.M.), or at such other
time as UPBNA may determine. The Closing shall be held at such place as
determined by UPBNA.
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1.5 EFFECTIVE TIME. The Merger, the Republic Dissolution, and the Bank
Merger and other transactions contemplated by this Agreement shall become
effective (i) as to the Merger, on the date and at the time of the Florida
Articles of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Florida, (ii) as to the Republic Dissolution,
on the date and at the time the Florida Articles of Dissolution reflecting the
Republic Dissolution shall become effective with the Secretary of State of the
State of Florida, and (iii) as to the Bank Merger, on the date and at the time
specified in the Certificate of Merger reflecting the Bank Merger issued by the
Office of the Comptroller of the Currency (the "Effective Time"). The Effective
Time of each of the Merger, the Republic Dissolution, and the Bank Merger shall
occur on the same day. Subject to the terms and conditions hereof, unless
otherwise mutually agreed upon in writing by the chief executive officers or
chief financial officers of each Party, the Parties shall use their reasonable
efforts to cause the Effective Time to occur on such date as may be designated
by UPBNA within 20 days following the last to occur of (i) the effective date of
the last required Consent of any Regulatory Authority having authority over and
approving or exempting the Merger and the Bank Merger (including the expiration
of any requisite waiting period in respect thereof), (ii) the date on which the
shareholders of Republic and Republic Bank approve this Agreement, the Plan of
Merger, the Republic Dissolution, and the Bank Plan of Merger, as appropriate,
and (iii) the date on which all other conditions precedent (other than those
conditions which relate to actions to be taken at the Closing) to each Party's
obligations hereunder shall have been satisfied or waived (to the extent
waivable by such Party).
1.6 EXECUTION OF AGREEMENTS. Simultaneously with the execution of this
Agreement by the Parties and as a condition thereto, (i) Republic is executing
and delivering to UPBNA a fee termination agreement (the "Fee Termination
Agreement"), in substantially the form of Exhibit 3, pursuant to which Republic
is agreeing to pay to UPBNA a termination fee under certain circumstances and
(ii) Rebank Netherlands Antilles N.V. and each of the directors of Republic are
executing and delivering to UPBNA support agreements (each a "Support
Agreement") in substantially the form of Exhibit 4.
1.7 RESTRUCTURE OF TRANSACTION. UPBNA shall, in its reasonable
discretion, have the unilateral right to revise the structure of the Merger or
the Bank Merger contemplated by this Agreement in order to achieve tax benefits
or for any other reason which UPBNA may deem advisable; provided, however, that
UPBNA shall not have the right, without the approval of the Board of Directors
of Republic and the Board of Directors of Republic Bank and, if required by
applicable law, the holders of the Republic Common Stock or the holders of
Republic Bank Common Stock, to make any revision to the structure of the Merger
or the Bank Merger which: (i) changes the amount or the manner of payment of the
consideration which the holders of shares of Republic Common Stock or the
holders of Republic Bank Common Stock are entitled to receive (determined in the
manner provided in Section 3.1 of this Agreement); (ii) would be materially
adverse to the interests of Republic or adverse to th holders of shares of
Republic Common Stock or the holders of shares of Republic Bank Common Stock; or
(iii) would materially impede or delay consummation of the Merger or the Bank
Merger. UPBNA may exercise this right of revision by giving written notice to
Republic in the manner provided in Section 11.8 of this Agreement which
notice shall be in the form of an amendment to this Agreement or in the form of
an Agreement and Plan of Reorganization.
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ARTICLE 2
TERMS OF MERGER AND BANK MERGER
2.1 CHARTER. The Charter (the "Charter") of Republic in effect
immediately prior to the Effective Time shall be the Charter of the Surviving
Corporation until otherwise amended or repealed. The Articles of Association
(the "Articles") of UPBNA in effect immediately prior to the Effective Time
shall be the Articles of the Surviving Bank until otherwise amended or repealed.
2.2 BYLAWS. The Amended and Restated Bylaws of Republic (the "Bylaws")
in effect immediately prior to the Effective Time shall be the By-laws of the
Surviving Corporation until otherwise amended or repealed. The Bylaws of UPBNA
in effect immediately prior to the Effective Time shall be the Bylaws of the
Surviving Bank until otherwise amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of UPBNA Merger Subsidiary in
office immediately prior to the Effective Time, together with such additional
persons as may thereafter be elected, shall serve as the directors of the
Surviving Corporation from and after the Effective Time in accordance with the
By-laws of the Surviving Corporation. The officers of UPBNA Merger Subsidiary in
office immediately prior to the Effective Time, together with such additional
persons a may thereafter be elected, shall serve as the officers of the
Surviving Corporation from the Effective Time in accordance with the By-laws of
the Surviving Corporation. The directors of UPBNA in office immediately prior to
the Effective Time, together with such additional persons as may thereafter be
elected, shall serve as the directors of the Surviving Bank from and after the
Effective Time in accordance with the Bylaws of the Surviving Bank. The officers
of UPBNA in office immediately prior to the Effective Time, together with such
additional persons as may thereafter be elected, shall serve as the officers of
the Surviving Bank from the Effective Time in accordance with the Bylaws of the
Surviving Bank.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this Article 3,
at the Effective Time, by virtue of the Merger and the Bank Merger and without
any action on the part of UPBNA, UPBNA Merger Subsidiary, Republic, Republic
Bank, or the shareholders of any of the foregoing, the shares of the constituent
corporations shall be converted as follows:
(a) Each share of UPBNA Common Stock issued and outstanding immediately
prior to the Effective Time shall remain issued and outstanding from and after
the Effective Time.
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(b) Each share of UPBNA Merger Subsidiary Common Stock issued and
outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for one share of Republic
Common Stock.
(c) Each share of Republic Common Stock (excluding shares held by
Republic, any Republic Subsidiary, UPBNA, or any UPBNA Subsidiary, in each case
other than in a fiduciary capacity or as a result of debts previously
contracted) issued and outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be converted into the right to receive a check
from UPBNA in the amount of $19.25 (without interest) (the "Cash Payment
Amount").
(d) Each share of Republic Bank Common Stock (excluding shares held by
Republic, any Republic Subsidiary, UPBNA, or any UPBNA Subsidiary, in each case
other than in a fiduciary capacity or as a result of debts previously
contracted) issued and outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be converted into the right to receive a check
from UPBNA in the amount of $45.25 (without interest) (the "Bank Cash Payment
Amount").
3.2 ANTI-DILUTION PROVISIONS. In the event Republic changes the number
of shares of Republic Common Stock or Republic Bank changes the number of shares
of Republic Bank Common Stock issued and outstanding prior to the Effective Time
as a result of a stock split, stock dividend, or similar recapitalization with
respect to such stock and the record date therefor (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) occurs prior to the
Effective Time, the Cash Payment Amount or Bank Cash Payment Amount shall be
adjusted as appropriate.
3.3 SHARES HELD BY REPUBLIC OR UPBNA. Each of the shares of Republic
Common Stock or Republic Bank Common Stock held by Republic, any Republic
Subsidiary, UPBNA or any UPBNA Subsidiary, in each case other than in fiduciary
capacity or as a result of debts previously contracted, shall be canceled and
retired at the Effective Time and no consideration shall be issued in exchange
therefor.
3.4 DISSENTING SHAREHOLDERS. Any holder of shares of Republic Bank
Common Stock who perfects such holder's dissenters' rights of appraisal in
accordance with and as contemplated by 12 U.S.C. Section 215a or other
applicable Law shall be entitled to receive the value of such shares in cash as
determined pursuant to such provision of Law; provided, that no such payment
shall be made to any dissenting shareholder unless and until such dissenting
shareholder has complied with the applicable provisions of 12 U.S.C. Section
215a or other applicable Law and surrendered to Republic Bank the certificate or
certificates representing the shares for which payment is being made. In the
event that after the Effective Time a dissenting shareholder of Republic Bank
fails to perfect, or effectively withdraws or loses, such holder's right to
appraisal and of payment for such holder's shares, UPBNA shall issue and deliver
the consideration to which such holder of shares of Republic Bank Common Stock
is entitled under this Article 3 (without interest) upon surrender by such
holder of the certificate or certificates representing shares of Republic Bank
Common Stock held by such holder.
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3.5 SETTLEMENT OF STOCK OPTIONS. At the Effective Time, UPBNA shall pay
to each holder of stock options granted by Republic pursuant to the Republic
Stock Option Plan that are outstanding at the Effective Time, whether or not
exercisable ("Republic Options"), an amount (without interest) by check (the
"Option Settlement Payment") equal to the difference (if positive) between the
Cash Payment Amount and the price per share of Republic Common Stock at which
the holder of such Republic Option may purchase the shares of Republic Common
Stock to which such Republic Option relates. At the Effective Time each such
Republic Option shall no longer represent the right to purchase shares of
Republic Common Stock, but rather shall represent only the nontransferable right
to receive the Option Settlement Payment. At the Effective Time, any other
rights associated with such Republic Options shall terminate.
ARTICLE 4
EXCHANGE OF SHARES
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time, UPBNA shall
cause the exchange agent selected by UPBNA (the "Exchange Agent") to mail to the
former shareholders of Republic and Republic Bank appropriate transmittal
materials (which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing shares of Republic Common
Stock or Republic Bank Common Stock, as the case may be, shall pass, only upon
proper delivery of such certificates to the Exchange Agent). Republic shall have
the right to review the transmittal materials prior to their mailing. After the
Effective Time, each holder of shares of Republic Common Stock or Republic Bank
Common Stock (other than shares to be canceled pursuant to Section 3.3 of this
Agreement or as to which dissenters' rights have been perfected as provided in
Section 3.4 of this Agreement) issued and outstanding at the Effective Time
shall surrender the certificate or certificates representing such shares to the
Exchange Agent and shall promptly upon surrender thereof receive in exchange
therefor the consideration provided in Section 3.1 of this Agreement (without
interest thereon), together with all undelivered dividends or distributions in
respect of such shares (without interest thereon) pursuant to Section 4.2 of
this Agreement. UPBNA shall not be obligated to deliver the consideration to
which any former holder of Republic Common Stock or Republic Bank Common Stock
is entitled as a result of the Merger or the Bank Merger, as the case may be,
until such holder surrenders his certificate or certificates representing the
shares of Republic Common Stock or Republic Bank Common Stock, as the case may
be, for exchange as provided in this Section 4.1. The certificate or
certificates of Republic Common Stock or Republic Bank Common Stock so
surrendered shall be duly endorsed as the Exchange Agent may require. Any other
provision of this Agreement notwithstanding, neither UPBNA, Republic, Republic
Bank, nor the Exchange Agent shall be liable to a holder of Republic Common
Stock or Republic Bank Common Stock for any amounts paid or property delivered
in good faith to a public official pursuant to any applicable abandoned property
Law.
4.2 RIGHTS OF FORMER REPUBLIC SHAREHOLDERS. At the Effective Time, the
stock transfer books of Republic and Republic Bank shall be closed as to holders
of Republic Common Stock and Republic Bank Common Stock, respectively,
immediately prior to the Effective Time
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and no transfer of Republic Common Stock or Republic Bank Common Stock by any
such holder shall thereafter be made or recognized. Until surrendered for
exchange in accordance with the provisions of Section 4.1 of this Agreement,
each certificate theretofore representing shares of Republic Common Stock or
Republic Bank Common Stock (other than shares to be canceled pursuant to Section
3.3 or as to which dissenters' rights have been perfected as provided in Section
3.4 of this Agreement) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Section 3.1
(without interest thereon) of this Agreement in exchange therefor; subject,
however, to the Surviving Corporation's and the Surviving Bank's obligation to
pay any dividends or make any other distributions with a record date prior to
the Effective Time which have been declared or made by Republic or Republic
Bank, as the case may be, in respect of the Republic Common Stock or the
Republic Bank Common Stock in accordance with the terms of this Agreement and
which remain unpaid at the Effective Time. In the event any Republic Common
Stock or Republic Bank Common Stock certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such certificate to be lost, stolen or destroyed and the posting by such person
of a bond in such amount as UPBNA may reasonably direct as indemnity against any
claim that may be made against it with respect to such certificate, the Exchange
Agent shall issue in exchange for such lost, stolen or destroyed certificate the
Cash Payment Amount or the Bank Cash Payment Amount deliverable in respect
thereof pursuant to this Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF REPUBLIC
Republic hereby represents and warrants to UPBNA as follows:
5.1 ORGANIZATION, STANDING, AND POWER. Republic is a corporation duly
organized, validly existing, and in good standing under the Laws of the State of
Florida, and has the corporate power and authority to carry on its business as
now conducted and to own, lease, and operate its material Assets. Republic is
duly qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Republic. Republic Bank is a
national banking association duly organized and validly existing, and in good
standing under the Laws of the United States, and has the corporate power and
authority to carry on its business a now conducted and to own, lease, and
operate its material Assets.
5.2 AUTHORITY, NO BREACH BY AGREEMENT.
(a) Republic has the corporate power and authority necessary
to execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement, and the consummation of the transactions
contemplated herein, including the Merger and the Republic
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Dissolution, have been duly and validly authorized by all necessary corporate
action (including valid authorization and adoption of this Agreement, the
Merger, and the Republic Dissolution by Republic's duly constituted Board of
Directors) in respect thereof on the part of Republic, subject to the approval
of this Agreement, the Merger, and the Republic Dissolution by the holders of
the outstanding shares of Republic Common Stock, which is the only shareholder
vote required for approval of this Agreement and consummation of the Merger and
the Republic Dissolution by Republic. Subject to such requisite shareholder
approval and assuming due authorization, execution and delivery of this
Agreement by UPBNA, this Agreement (which, for purposes of this sentence, shall
not include the Fee Termination Agreement) represents a legal, valid, and
binding obligation of Republic, enforceable against Republic in accordance with
its terms (except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought). Republic Bank has the
corporate power and authority necessary to execute, deliver, and perform its
obligations under the Bank Plan of Merger and to consummate the transactions
contemplated thereby. The execution, delivery, and performance of the Bank Plan
of Merger and the consummation of the transactions contemplated therein,
including the Bank Merger, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of Republic Bank,
subject to the approval of the Bank Plan of Merger by the holders of two-thirds
of the outstanding Republic Bank Common Stock, which is the only shareholder
vote required for approval of the Bank Plan of Merger and consummation of the
Bank Merger by Republic Bank.
(b) Neither the execution and delivery of this Agreement
(which, for purposes of clause (iii) of this sentence, shall not include the Fee
Termination Agreement) by Republic, nor the consummation by Republic of the
transactions contemplated hereby, nor compliance by Republic with any of the
provisions hereof, will (i) conflict with or result in a breach of any provision
of the Articles or the By-laws of Republic, or (ii) except as disclosed in
Section 5.2 of the Republic Disclosure Memorandum, constitute or result in a
Default under, or require any Consent (excluding Consents required by Law or
Order) pursuant to, or result in the creation of any Lien on any material Asset
of Republic or any Republic Subsidiary under, any Contract or Permit of Republic
or any Republic Subsidiary, except for such Defaults, Liens and Consents, which,
if not obtained or made, are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Republic, or (iii) subject to
receipt of the requisite Consents referred to in Section 9.1(b) of this
Agreement, violate any Law or Order applicable to Republic, its Subsidiaries or
any of their respective material Assets. Neither the execution and delivery of
the Bank Plan of Merger by Republic Bank, nor the consummation by Republic Bank
of the transactions contemplated hereby, nor compliance by Republic Bank with
any of the provisions thereof, will (i) conflict with or result in a breach of
any provision of Republic Bank's Articles of Association or Bylaws, or (ii)
except as disclosed in Section 5.2 of the Republic Disclosure Memorandum,
constitute or result in a Default under, or require any Consent (excluding
Consents required by Law or Order) pursuant to, or result in the creation of any
Lien on any material Asset of Republic Bank under, any Contract or Permit of
Republic Bank, except for such Defaults, Liens and Consents, which, if not
obtained or made, are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic Bank, or,
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(iii) subject to receipt of the requisite approvals referred to in Section
9.1(b) of this Agreement, violate any Law or Order applicable to Republic Bank
or any of its material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities Laws, and
rules of the NASD, and other than Consents required from Regulatory Authorities,
and other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
or under the HSR Act, and other than Consents, filings, or notifications which,
if not obtained or made, are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Republic, no notice to, filing with,
or Consent of, any public body or authority is necessary for the consummation by
Republic of the Merger or the Republic Dissolution, the consummation by Republic
Bank of the Bank Merger and the consummation of the other transactions
contemplated in this Agreement, the Plan of Merger and the Bank Plan of Merger.
5.3 CAPITAL STOCK.
(a) The authorized capital stock of Republic consists of
50,000,000 shares of Republic Common Stock, of which 21,230,892 shares are
issued and outstanding as of the date of this Agreement and not more than
21,750,892 shares will be issued and outstanding at the Effective Time and
5,000,000 shares of Republic Preferred Stock of which no shares are issued and
outstanding as of the date of this Agreement and no shares will be issued and
outstanding at the Effective Time. All of the issued and outstanding shares of
capital stock of Republic are duly and validly issued and outstanding and are
fully paid and nonassessable under the FBCA. None of the outstanding shares of
capital stock of Republic has been issued in violation of any preemptive rights
of the current or past shareholders of Republic. Republic has reserved 1,000,000
shares of Republic Common Stock for issuance under the Republic Stock Option
Plan, pursuant to which options to purchase 520,000 shares of Republic Common
Stock are outstanding. Except as set forth above or as disclosed in Section 5.3
of the Republic Disclosure Memorandum, there are no shares of capital stock or
other equity securities of Republic outstanding and no outstanding Rights
relating to the capital stock of Republic.
(b) The authorized capital stock of Republic Bank consists of
20,000,000 shares of Republic Bank Common Stock, of which 8,129,171 shares are
issued and outstanding as of the date of this Agreement and not more than
8,129,171 shares will be issued and outstanding at the Effective Time. All of
the issued and outstanding shares of capital stock of Republic Bank are duly and
validly issued and outstanding and are fully paid under the National Bank Act.
None of the outstanding share of capital stock of Republic Bank has been issued
in violation of any preemptive rights of the current or past shareholders of
Republic Bank. Except as set forth above or as disclosed in Section 5.3 of the
Republic Disclosure Memorandum, there are no shares of capital stock or other
equity securities of Republic Bank outstanding and no outstanding Rights
relating to the capital stock of Republic Bank.
5.4 REPUBLIC SUBSIDIARIES. Republic has disclosed in Section 5.4 of the
Republic Disclosure Memorandum all of the Republic Subsidiaries that are
corporations (identifying its
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jurisdiction of incorporation) and all of the Republic Subsidiaries that are
general or limited partnerships or other non-corporate entities (identifying the
Law under which such entity is organized, and the amount and nature of the
ownership interest therein of Republic Subsidiaries). Except a set forth in
Section 5.4 of the Republic Disclosure Memorandum, Republic or one of its
wholly-owned Subsidiaries owns all of the issued and outstanding shares of
capital stock (or other equity interests) of each of the Republic Subsidiaries.
Except as set forth in Section 5.4 of the Republic Disclosure Memorandum and
except for the Republic Stock Option Plan, no capital stock (or other equity
interest) of any Republic Subsidiary is or may become required to be issued
(other than to another Republic Subsidiary) by reason of any Rights, and there
are no Contracts by which Republic or any of the Republic Subsidiaries is bound
to issue (other than to Republic or another of the Republic Subsidiaries)
additional shares of its capital stock (or other equity interests) or Rights or
by which Republic or any of the Republic Subsidiaries is or may be bound to
transfer any shares of the capital stock (or other equity interests) of any of
Republic or any of the Republic Subsidiaries (other than to Republic or an of
the Republic Subsidiaries). Except as set forth in Section 5.4 of the Republic
Disclosure Memorandum, there are no Contracts relating to the rights of Republic
or any Republic Subsidiary to vote or to dispose of any shares of the capital
stock (or other equity interests) of Republic or any Republic Subsidiary. All of
the shares of capital stock (or other equity interests) of each Republic
Subsidiary held by Republic or any Republic Subsidiary are fully paid and
nonassessable under the applicable corporation or similar Law of the
jurisdiction in which such Subsidiary is incorporated or organized and are owned
by Republic or a Republic Subsidiary free and clear of any Liens. Each Republic
Subsidiary is either a bank, partnership, limited liability corporation, or a
corporation, and each such Subsidiary is duly organized, validly existing, and
(as to corporations) in good standing under the Laws of the jurisdiction in
which it is incorporated or organized, and has the corporate power and authority
necessary for it to own, lease, and operate its material Assets and to carry on
its business as now conducted. Each Republic Subsidiary is duly qualified or
licensed to transact business as a foreign corporation in good standing in the
States of the United States and foreign jurisdictions where the character of its
Assets or the nature or conduct of its business requires it to be so qualified
or licensed, except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic. The only Republic Subsidiary
that is a depository institution is Republic Bank. Republic Bank is an "insured
institution" as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder, and the deposits in which are insured by the Bank
Insurance Fund and the Savings Association Insurance Fund. The minute book and
other organizational documents (and all amendments thereto) for Republic and eac
Republic Subsidiary that is a "Significant Subsidiary" (as such term is defined
in Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇) have been or will be made
available to UPBNA for its review, and are true and complete in all material
respects as in effect as of the date of this Agreement.
5.5 FINANCIAL STATEMENTS. Each of the Republic Financial Statements
(including, in each case, any related notes) contained in the Republic SEC
Reports, including any Republic SEC Reports filed after the date of this
Agreement until the Effective Time, complied, or will comply, as to form in all
material respects with the applicable published rules and regulations of the SEC
with respect thereto, was prepared, or will be prepared, in accordance with GAAP
applied on a consistent basis throughout the periods involved (except as may be
indicated in the
-10-
notes to such financial statements or, in the case of unaudited interim
statements, as permitted by Form 10-Q of the SEC), and fairly presented, or will
fairly present, in all material respects the consolidated financial position of
Republic and the Republic Subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not or are not expected to
be material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Neither Republic nor any of the
Republic Subsidiaries has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic, except
Liabilities which are accrued or reserved against in the consolidated balance
sheets of Republic as of September 30, 1998, included in the Republic Financial
Statements made available prior to the date of this Agreement or reflected in
the notes thereto. Except as disclosed in Section 5.6 of the Republic Disclosure
Memorandum, neither Republic nor any of the Republic Subsidiaries has incurred
or paid any Liability since September 30, 1998, except for such Liabilities
incurred or paid (i) in the ordinary course of business consistent with past
business practice or which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Republic or (ii) in connection with
the transactions contemplated by this Agreement.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1998,
except as disclosed in the Republic SEC Reports made available prior to the date
of this Agreement or in Section 5.7 of the Republic Disclosure Memorandum, there
have been no events, changes, or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Republic.
5.8 TAX MATTERS.
(a) All material Tax Returns required to be filed by or on
behalf of Republic or any of the Republic Subsidiaries have been timely filed or
requests for extensions have been timely filed, granted, and have not expired
for periods ended on or before December 31, 1997, and on or before the date of
the most recent fiscal year end immediately preceding the Effective Time, and
all such Tax Returns filed are complete and accurate in all material respects.
All Taxes shown on filed Tax Returns have been paid. There is no audit
examination or refund Litigation with respect to any material Taxes, except as
reserved against in the Republic Financial Statements made available prior to
the date of this Agreement. All material Taxes and other material Liabilities
due with respect to completed and settled examinations or concluded Litigation
have been paid. There are no material Liens with respect to Taxes upon any of
the Assets of Republic or any of the Republic Subsidiaries.
(b) Neither Republic nor any of the Republic Subsidiaries has
executed an extension or waiver of any statute of limitations on the assessment
or collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other applicable
taxing authorities) that is currently in effect.
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(c) Adequate provision for any material Taxes due or to become
due for Republic or the Republic Subsidiaries for the period or periods through
and including the date of the respective Republic Financial Statements has been
made and is reflected on such Republic Financial Statements.
(d) Material deferred Taxes of Republic and the Republic
Subsidiaries have been provided for in accordance with GAAP.
(e) Republic and the Republic Subsidiaries are in material
compliance with, and its records contain all information and documents
(including properly completed IRS Forms W-9) necessary to comply in all material
respects with, all applicable information reporting and Tax withholding
requirements under federal, state, and local Tax Laws, and such records identify
with specificity all accounts subject to backup withholding under Section 3406
of the Internal Revenue Code.
(f) Except as disclosed in Section 5.8(f) of the Republic
Disclosure Memorandum, neither Republic nor any of the Republic Subsidiaries has
made any payments, is obligated to make any payments, or is a party to any
Contract that could obligate it to make any payments that would be disallowed as
a deduction under Section 280G or 162(m) of the Internal Revenue Code.
(g) There has not been an ownership change, as defined in
Internal Revenue Code Section 382(g), of Republic or any of the Republic
Subsidiaries that occurred during or after any Taxable Period in which Republic
or any of the Republic Subsidiaries incurred a net operating loss that carries
over to any Taxable Period ending after December 31, 1997, except in connection
with the transactions contemplated pursuant to this Agreement.
(h) Neither Republic nor any of the Republic Subsidiaries is a
party to any tax allocation or sharing agreement, except between themselves, and
neither Republic nor any of the Republic Subsidiaries has been a member of an
affiliated group filing a consolidated federal income tax return, other than
Republic with Republic Bank, or has any material Liability for taxes of any
Person (other than Republic and the Republic Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local, or
foreign law) as a transferee or successor or by Contract or otherwise.
(i) At all times during the five-year period ending at the
Effective Time, the fair market value of all of Republic's United States real
property interests was and will have been less than fifty percent (50%) of the
fair market value of the total of (a) its United States real property interests,
(b) its interests in real property located outside the United States, and (c)
its other assets used or held for use in a trade or business. For purposes of
the preceding sentence, (i) United States real property interests include all
interests (other than an interest solely as a creditor) in real property and
associated personal property (such as movable walls and furnishings) located in
the United States or the Virgin Islands and interests in any corporation (other
than a controlled corporation) owning any United States real property interest,
(ii) Republic is treated as owning its proportionate share (based on the
relative fair market value of its
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ownership interest to all ownership interests) of the assets owned by any
controlled corporation or any partnership, trust, or estate in which Republic is
a partner or beneficiary, and (iii) any such entity in turn is treated as owning
its proportionate share of the assets owned by any controlled corporation or any
partnership, trust, or estate in which the entity is a partner or beneficiary.
As used in this paragraph, "controlled corporation" means any corporation at
least fifty percent (50%) of the fair market value of the stock of which is
owned by Republic, in the case of a first-tier subsidiary of Republic or by a
controlled corporation, in the case of a lower-tier subsidiary.
5.9 ASSETS. Except as disclosed in Section 5.9 of the Republic
Disclosure Memorandum or reserved against in the Republic Financial Statements
made available prior to the date of this Agreement, Republic and the Republic
Subsidiaries have good and marketable title, free and clear of all Liens, to all
of their respective material Assets. Substantially, all tangible properties used
in the businesses of Republic and its Subsidiaries are in good condition,
reasonable wear and tear excepted, and are usable in the ordinary course of
business of Republic and its Subsidiaries. All Assets which are material to
Republic's business on a consolidated basis, held under leases or subleases by
Republic or any of the Republic Subsidiaries, are held under valid Contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
or other Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought), and each such Contract is in full force and effect.
Republic and the Republic Subsidiaries currently maintain insurance in amounts,
scope, and coverage which, in the reasonable opinion of management of Republic,
are adequate for the operations of Republic and the Republic Subsidiaries.
Neither Republic nor any of the Republic Subsidiaries has received notice from
any insurance carrier within the past three years that (i) such insurance will
be canceled or that coverage thereunder will be reduced or eliminated within the
past three years, or (ii) premium costs with respect to such policies of
insurance will be substantially increased. Except for claims disclosed in
Section 5.9 of the Republic Disclosure Memorandum, there are presently no
material claims pending under any such policies o insurance and no notices have
been given by Republic or any of the Republic Subsidiaries under such policies.
5.10 INTELLECTUAL PROPERTY. All of the Intellectual Property rights of
Republic and the Republic Subsidiaries are in full force and effect and, if
applicable, constitute legal, valid, and binding obligations of the respective
parties thereto, and there have not been, and, to the Knowledge of Republic,
there currently are not, any Defaults thereunder by Republic or a Republic
Subsidiary. Except as disclosed in Section 5.10 of the Republic Disclosure
Memorandum, Republic or a Republic Subsidiary owns or is the valid licensee of
all such Intellectual Property rights free and clear of all Liens or claims of
infringement. Neither Republic nor any of the Republic Subsidiaries nor, to the
Knowledge of Republic, their respective predecessors has infringed the
Intellectual Property rights of others and, to the Knowledge of Republic, none
of the Intellectual Property rights as used in the business conducted by
Republic or the Republic Subsidiaries infringes upon or otherwise violates the
rights of any Person, nor has any Person asserted a claim of such infringement.
Except as disclosed in Section 5.10 of the
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, neither Republic nor the Republic Subsidiaries
is obligated to pay any royalties to any Person with respect to any such
Intellectual Property. Republic or a Republic Subsidiary owns or has the valid
right to use all of the Intellectual Property rights which it is presently
using, or in connection with performance of any material Contract to which it is
a party. Except as disclosed in Section 5.10 of the Republic Disclosure
Memorandum, no officer, director, or employee of Republic or the Republic
Subsidiaries is party to any Contract which requires such officer, director, or
employee to assign any interest in any Intellectual Property or keep
confidential any trade secrets, proprietary data, customer information, or other
business information or, which restricts or prohibits such officer, director, or
employee from engaging in activities competitive with any Person, including
Republic or any of the Republic Subsidiaries.
5.11 ENVIRONMENTAL MATTERS. Except as disclosed in Section 5.11 of the
Republic Disclosure Memorandum,
(a) To the Knowledge of Republic, each of Republic and the
Republic Subsidiaries, its Participation Facilities, and its Operating
Properties are in compliance with all Environmental Laws, except for violations
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Republic.
(b) To the Knowledge of Republic, there is no Litigation
pending or threatened before any court or governmental agency, in which
Republic, any of the Republic Subsidiaries or any of their respective Operating
Properties or Participation Facilities (or Republic in respect of such Operating
Property or Participation Facility) is or, with respect to threatened
Litigation, may be named as a defendant (i) for alleged noncompliance (including
by any predecessor) with any Environmental Law or (ii) relating to the release
into the environment of any Hazardous Material, whether or not occurring at, on,
under, adjacent to, or affecting a site owned, leased, or operated by Republic
or any of the Republic Subsidiaries or any of their respective Operating
Properties or Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic.
(c) During the period of (i) Republic's or any of the Republic
Subsidiaries' ownership or operation of any of their respective currently owned
properties, (ii) Republic's or any of the Republic Subsidiaries' participation
in the management of any Participation Facility, or (iii) Republic's or any of
the Republic Subsidiaries' holding of a security interest in an Operating
Property, to the Knowledge of Republic, there have been no releases of Hazardous
Material in violation of any Environmental Law in, on, under, adjacent to, or
affecting such properties, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Republic.
5.12 COMPLIANCE WITH LAWS. Republic is duly registered as a bank
holding company under the BHC Act. Each of Republic and the Republic
Subsidiaries has in effect all Permits necessary for it to own, lease, or
operate its material Assets and to carry on its business as now conducted,
except where the failure to hold such Permits would not be reasonably likely to
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have, individually or in the aggregate, a Material Adverse Effect on Republic.
Neither Republic nor any of the Republic Subsidiaries:
(a) is in violation of any Laws, Orders, or Permits applicable
to its business or employees conducting its business, except for such violations
which would not be reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Republic; or
(b) has received any notification or communication from any
agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof which remains unresolved (i) asserting that
Republic or any of the Republic Subsidiaries is not in compliance with any of
the Laws or Orders which such governmental authority or Regulatory Authority
enforces, except for such non-compliance as would not be reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect, (ii)
threatening to revoke any Permits, or (iii) requiring Republic or any of the
Republic Subsidiaries to enter into or consent to the issuance of a cease and
desist order, formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar undertaking, which
restricts materially the conduct of its business, or in any manner relates to
its capital adequacy, its credit or reserve policies, or its management.
5.13 LABOR RELATIONS. Neither Republic nor any of the Republic
Subsidiaries is the subject of any Litigation asserting that Republic or any of
the Republic Subsidiaries has committed an unfair labor practice (within the
meaning of the National Labor Relations Act or comparable state law) or seeking
to compel Republic or any of the Republic Subsidiaries to bargain with any labor
organization as to wages or conditions of employment, nor is there any strike or
other labor dispute involving Republic or any of the Republic Subsidiaries,
pending or threatened, or to the Knowledge of Republic, is there any activity
involving Republic's or any of the Republic Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in any other organization
activity.
5.14 EMPLOYEE BENEFIT PLANS.
(a) Republic has disclosed in Section 5.14(a) of the Republic
Disclosure Memorandum, and has delivered or made available to UPBNA prior to the
execution of this Agreement copies in each case of, all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plan, all other written
employee programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee benefit
plans or fringe benefit plans, including "employee benefit plans" as that term
is defined in Section 3(3) of ERISA, currently adopted, maintained by, sponsored
in whole or in part by, or contributed to by Republic or the Republic
Subsidiaries or ERISA Affiliate thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
of Republic or any Republic Subsidiary and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
of Republic or any Republic Subsidiary are eligible to participate
(collectively, the "Republic Benefit Plans"). Any of the Republic Benefit Plans
which is an "employee pension benefit plan," as that term is defined in Section
3(2) of ERISA, is
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referred to herein as a "Republic ERISA Plan." Each Republic ERISA Plan which is
also a "defined benefit plan" (as defined in Section 414(j) of the Internal
Revenue Code) is referred to herein as a "Republic Pension Plan." No Republic
Pension Plan is or has been a multiemployer plan within the meaning of Section
3(37) of ERISA.
(b) Except as disclosed in Section 5.14(b), all Republic
Benefit Plans are in compliance with the applicable terms of ERISA, the Internal
Revenue Code, and any other applicable Laws, except for any breach or violation
thereof which is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic. Except as disclosed in Section
5.14(b), each Republic ERISA Plan that is intended to be qualified under Section
401(a) of the Internal Revenue Code has either received a favorable
determination letter from the Internal Revenue Service (and Republic is not
aware of any circumstances likely to result in revocation of any such favorable
determination letter) or timely application has been made therefor. To the
knowledge of Republic, neither Republic nor any of the Republic Subsidiaries has
engaged in a transaction with respect to any Republic Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof,
would subject any Republic to a material Tax imposed by either Section 4975 of
the Internal Revenue Code or Section 502(i) of ERISA.
(c) Except as disclosed in Section 5.14(c) of the Republic
Disclosure Memorandum, no Republic Pension Plan has any "underfunded current
liability" as that term is defined in Section 302(d)(8)(A) of ERISA and the fair
market value of the assets of any such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of ERISA, when
determined under actuarial factors that would apply if the plan terminated in
accordance with all applicable legal requirements. Since the date of the most
recent actuarial valuation, there has been (i) no material change in the
financial position of any Republic Pension Plan, (ii) no change in the actuarial
assumptions with respect to any Republic Pension Plan, and (iii) no increase in
benefits under any Republic Pension Plan as a result of plan amendments or
changes in applicable Law which is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Republic or materially adversely
affect the funding status of any such plan. Neither any Republic Pension Plan
nor any "single-employer plan," within the meaning of Section 4001(a)(15) of
ERISA, currently or formerly maintained by Republic or any of the Republic
Subsidiaries, or the single-employer plan of any entity which is considered one
employer with Republic under Section 4001 of ERISA or Section 414 of the
Internal Revenue Code or Section 302 of ERISA (whether or not waived) (an "ERISA
Affiliate") has an "accumulated funding deficiency" within the meaning of
Section 412 of the Internal Revenue Code or Section 302 of ERISA. Neither
Republic nor any of the Republic Subsidiaries has provided, or, to Republic's
knowledge, is required to provide, security to a Republic Pension Plan or to any
single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the
Internal Revenue Code.
(d) Within the six-year period preceding the Effective Time,
no material Liability under Subtitle C or D of Title IV of ERISA has been
incurred by Republic or any of the Republic Subsidiaries with respect to any
current, frozen, or terminated single-employer plan or the single-employer plan
of any ERISA Affiliate. Neither Republic nor any of the Republic Subsidiaries
has incurred any material withdrawal Liability with respect to a multiemployer
plan
-16-
under Subtitle E of Title IV o ERISA (regardless of whether based on
contributions of an ERISA Affiliate). No notice of a "reportable event," within
the meaning of Section 4043 of ERISA for which the 30-day reporting requirement
has not been waived, has been required to be filed for any Republic Pension Plan
or by any ERISA Affiliate within the 12-month period ending on the date hereof.
(e) Neither Republic nor any of the Republic Subsidiaries has
any material Liability for retiree health and life benefits under any of the
Republic Benefit Plans.
(f) Except as disclosed in Section 5.14(f) of the Republic
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) result in any
payment (including severance, unemployment compensation or golden parachute)
becoming due to any director or any employee of Republic or any of the Republic
Subsidiaries from Republic or any of the Republic Subsidiaries under any
Republic Benefit Plan, (ii) materially increase any benefits otherwise payable
under any Republic Benefit Plan, or (iii) result in any acceleration of the time
of payment or vesting of any such benefit.
(g) The actuarial present values of all accrued deferred
compensation entitlements (including entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees and
former employees of any Republic Subsidiary and their respective beneficiaries,
other than entitlements accrued pursuant to funded retirement plans subject to
the provisions of Section 412 of the Internal Revenue Code or Section 302 of
ERISA, have been fully reflected on the Republic Financial Statements to the
extent required by and in accordance with GAAP.
5.15 MATERIAL CONTRACTS. Except as disclosed in Section 5.15 of the
Republic Disclosure Memorandum and except for payments to employees performing
services under oral, at will employment agreements, neither Republic, the
Republic Subsidiaries, nor any of their respective Assets, businesses, or
operations, is a party to, or is bound or affected by, or receives benefits
under, (i) any employment, severance, termination, consulting, or retirement
Contract providing for aggregate payments to any Person in any calendar year in
excess of $100,000, (ii) any Contract relating to the borrowing of money by
Republic or any of the Republic Subsidiaries or the guarantee by Republic or any
of the Republic Subsidiaries of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds, fully-secured
repurchase agreements, trade payables, and Contracts relating to borrowings,
letters of credit or guarantees made in the ordinary course of business), (iii)
any Contracts which prohibit or restrict Republic or any of the Republic
Subsidiaries from engaging in any business activities in any geographic area,
line of business, or otherwise in competition with any other Person, (iv) any
other Contract or amendment thereto that would be required to be filed as an
exhibit to a Form 10-K filed by Republic with the SEC as of the date of this
Agreement that has not been filed by Republic as an exhibit to its Annual Report
on Form 10-K for the fiscal year ended December 31, 1997 (together with all
Contracts referred to in Section 5.9 and 5.14(a) of this Agreement, the
"Republic Contracts"). With respect to each Republic Contract: (i) the Contract
is in full force and effect; (ii) neither Republic nor any Republic Subsidiary
is in material Default thereunder; (iii) neither
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Republic nor its Subsidiaries has repudiated or waived any material provision of
any such Contract; and (iv) no other party to any such Contract is, to the
Knowledge of Republic, in material Default in any respect or has repudiated or
waived any material provision thereunder. Section 5.15 of the Republic
Disclosure Memorandum also describes the obligation of Republic to purchase two
properties from the United States government.
5.16 LEGAL PROCEEDINGS. There is no Litigation instituted or pending,
or, to the Knowledge of Republic, threatened (or unasserted but considered
probable of assertion and which if asserted would have at least a reasonable
probability of an unfavorable outcome) against Republic or any of the Republic
Subsidiaries, or against any Asset, employee benefit plan, interest, or right of
any of them, that is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Republic, nor are there any Orders of
any Regulatory Authorities, other governmental authorities, or arbitrators
outstanding against Republic or any of the Republic Subsidiaries. Section 5.16
of the Republic Disclosure Memorandum includes a summary report of all material
Litigation as of the date of this Agreement to which Republic or any Republic
Subsidiary is a party and which names Republic or a Republic Subsidiary as a
defendant or cross-defendant.
5.17 REPORTS. Since January 1, 1998, or the applicable date of
organization if later, Republic and each Republic Subsidiary has filed all
reports and statements, together with any amendments required to be made with
respect thereto, that it was required to file with (i) the SEC, including, but
not limited to, Forms 10-K, Forms 10-Q, Forms 8-K, and proxy statements (the
"Republic SEC Reports"), (ii) other Regulatory Authorities, and (iii) any
applicable state securities or banking authorities, except failures to file
which are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Republic. As of its respective date (or, if amended
or superseded by a filing prior to the date of this Agreement, then on the date
of such filing), each of such reports and documents, including, the financial
statements, exhibits, and schedules thereto complied in all material respects
with all applicable Laws. As of its respective date, each Republic SEC Report
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. Except for Republic Subsidiaries that are registered as a broker,
dealer, or investment advisor, no Republic Subsidiary is required to file any
SEC Documents.
5.18 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by Republic for inclusion in the Proxy Statement to be mailed to
Republic's and Republic Bank's shareholders in connection with the Shareholders'
Meeting and the Republic Bank Shareholders' Meeting, and any other documents to
be filed by Republic with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at the respective
time such documents are filed, and with respect to the Proxy Statement, when
first mailed to the shareholders of Republic and Republic Bank, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of the Shareholders'
Meeting and the Republic Bank Shareholders' Meeting, be false or misleading with
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respect to any material fact, or omit to state any material fact necessary to
correct any statement in any earlier communication with respect to the
solicitation of any proxy for the Shareholders' Meeting and the Republic Bank
Shareholders' Meeting. All documents that Republic or the Republic Subsidiaries
are responsible for filing with any Regulatory Authority in connection with the
transactions contemplated hereby will comply as to form in all material respects
with the provisions of applicable Law.
5.19 REGULATORY MATTERS. Neither Republic nor any of the Republic
Subsidiaries has taken any action or has any Knowledge of any fact or
circumstance relating to Republic that is reasonably likely to materially impede
or delay receipt of any Consents of Regulatory Authorities referred to in
Section 9.1(b) of this Agreement.
5.20 ARTICLE PROVISIONS. Republic has taken all action so that the
entering into of this Agreement and the consummation of the Merger and the other
transactions contemplated by this Agreement do not and will not result in the
grant of any rights to any Person under the Articles of Incorporation, By-laws
or other governing instruments of Republic or any Republic Subsidiary or
restrict or impair the ability of UPBNA or any of the UPBNA Subsidiaries to
vote, or otherwise to exercise the rights of a shareholder with respect to,
shares of Republic or any Republic Subsidiary.
5.21 DERIVATIVES CONTRACTS. Neither Republic nor any of its
Subsidiaries is a party to or has agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor or collar financial
contract, or any other interest rate or foreign currency protection contract not
included on its balance sheet which is a financial derivative contract
(including various combinations thereof) and which might reasonably be expected
to have a Material Adverse Effect on Republic.
5.22 YEAR 2000. To the Knowledge of Republic, all critical computer
software necessary for the conduct of its business (the "Software") has been
tested and is designed to be used prior to, during, and after the calendar year
2000 A.D., and critical Software will operate during each such time period
without error relating to the year 2000, specifically including any error
relating to, or the product of, date data which represents or references
different centuries or more than one century. Republic further represents and
warrants that critical Software has been tested and accepts, calculates, sorts,
extracts and otherwise processes date inputs and date values, and returns and
displays date values, in a consistent manner regardless of the dates used,
whether before, on, or after January 1, 2000.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF UPBNA
UPBNA hereby represents and warrants to Republic as follows:
6.1 ORGANIZATION, STANDING, AND POWER. UPBNA is a national banking
association duly organized and validly existing, and in good standing under the
Laws of the
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▇▇▇▇▇▇ ▇▇▇▇▇▇, and has the corporate power and authority to carry on its
business as now conducted and to own, lease, and operate its material Assets.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) UPBNA has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Bank Merger, have been duly and validly
authorized by all necessary corporate action, including valid authorization and
adoption of this Agreement and the Bank Plan of Merger by UPBNA's duly
constituted Board of Directors and valid approval of this Agreement and the Bank
Plan of Merger by the sole shareholder of the outstanding UPBNA Common Stock,
which is the only shareholder vote required for approval of this Agreement and
the Bank Plan of Merger and consummation of the Bank Merger by UPBNA. Assuming
due authorization, execution and delivery of this Agreement by Republic, this
Agreement (which, for purposes of this sentence, shall not include the Fee
Termination Agreement) represents a legal, valid, and binding obligation of
UPBNA, enforceable against UPBNA in accordance with its terms (except in all
cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar Laws affecting the
enforcement of creditors' rights generally and except that the availability of
the equitable remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
(which, for purposes of clause (iii) of this sentence, shall not include the Fee
Termination Agreement) by UPBNA, nor the compliance by UPBNA with any of the
provisions hereof, will (i) conflict with or result in a breach of any provision
of UPBNA's Articles of Association or By-laws, or (ii) constitute or result in a
Default under, or require any Consent (excluding Consents required by Law or
Order) pursuant to, or result i the creation of any Lien on any material Asset
of UPBNA or any UPBNA Subsidiary under, any Contract or Permit of UPBNA or any
UPBNA Subsidiary, except for such Defaults, Liens and Consents, which, if not
obtained or made, are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPBNA, or (iii) subject to receipt of
the requisite approvals referred to in Section 9.1(b) of this Agreement, violate
any Law or Order applicable to UPBNA or any UPBNA Subsidiary or any of their
respective material Assets.
(c) Other than in connection or compliance with the provisions
of the Securities Laws, applicable state corporate and securities Laws, and
other than Consents required from Regulatory Authorities, and other than notices
to or filings with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation with respect to any employee benefit plans, or under the HSR Act,
and other than Consents, filings, or notifications which, if not obtained or
made, are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPBNA, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by UPBNA Merger
Subsidiary of the Merger or the
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consummation by UPBNA of the Bank Merger and the other transactions contemplated
in this Agreement, the Plan of Merger, and the Bank Plan of Merger.
6.3 COMPLIANCE WITH LAWS. Each of UPBNA and the UPBNA Subsidiaries has
in effect all Permits necessary for it to own, lease, or operate its material
Assets and to carry on its business as now conducted, except where the failure
to hold such permits would not be reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on UPBNA. Neither UPBNA nor any of the
UPBNA Subsidiaries:
(a) is in violation of any Laws, Orders, or Permits applicable
to its business or employees conducting its business, except for such
violations which would not be reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPBNA; or
(b) has received any notification or communication from any
agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that UPBNA or any UPBNA Subsidiary
is not in compliance with any of the Laws or Orders which such governmental
authority or Regulatory Authority enforces, (ii) threatening to revoke any
Permits, or (iii) requiring UPBNA or any UPBNA Subsidiary to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit or
reserve policies, or its management.
6.4 LEGAL PROCEEDINGS. There is no Litigation instituted or pending,
or, to the Knowledge of UPBNA, threatened (or unasserted but considered probable
of assertion and which if asserted would have at least a reasonable probability
of an unfavorable outcome) against UPBNA or any UPBNA Subsidiary, or against any
Asset, interest, or right of any of them, that is reasonably likely (i) to have,
individually or in the aggregate, a Material Adverse Effect on UPBNA or (ii) to
impede or materially delay the consummation of the transactions contemplated
under this Agreement, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding against UPBNA or any
UPBNA Subsidiary.
6.5 STATEMENTS TRUE AND CORRECT. None of the information supplied or to
be supplied by UPBNA for inclusion in the Proxy Statement to be mailed to
Republic's and Republic Bank's shareholders in connection with the Shareholders'
Meeting and the Republic Bank Shareholders' Meeting, and any other documents to
be filed by UPBNA or any UPBNA Subsidiary with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Republic and Republic Bank,
be false or misleading with respect to any material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, in the case of the
Proxy Statement or any amendment thereof or supplement thereto, at the time of
the Shareholders' Meeting and the Republic Bank Shareholders' Meeting, be false
or misleading with respect to any material fact, or omit to state any material
fact necessary to correct any statement in any earlier communication with
respect to the solicitation of any proxy for the
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Shareholders' Meeting and the Republic Bank Shareholders' Meeting. All documents
that UPBNA or any UPBNA Subsidiary is responsible for filing with any Regulatory
Authority in connection with the transactions contemplated hereby will comply as
to form in all material respects with the provisions of applicable Law.
6.6 REGULATORY MATTERS; CONSUMMATION OF TRANSACTIONS; CONSENTS. Neither
UPBNA nor any UPBNA Subsidiary has taken any action or has any Knowledge of any
fact or circumstance relating to UPBNA or its parent company, including year
2000 preparedness, that is reasonably likely to materially impede or delay
receipt of any Consents of Regulatory Authorities referred to in Section 9.1(b)
of this Agreement or the consummation of the transactions contemplated hereby.
To the Knowledge of UPBNA, no Consents (excluding Consents required by Law or
Order) are necessary with respect to UPBNA for the consummation of the
transactions contemplated by this Agreement.
6.7 FINANCIAL CAPACITY. UPBNA has, and will have at the Effective Time,
cash, and other liquid assets, and other funding sources, sufficient in amount
to make the aggregate Cash Payment Amounts and Bank Cash Payment Amounts
required under the terms of this Agreement and otherwise to obtain the Consents
of Regulatory Authorities referred to in Section 9.1(b) of this Agreement and to
consummate of the transactions contemplated hereby.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF REPUBLIC. Unless the prior written consent
of UPBNA shall have been obtained, and except as otherwise expressly
contemplated herein, Republic shall and shall cause each of the Republic
Subsidiaries to (i) operate its business only in the usual, regular, and
ordinary course, (ii) use reasonable efforts to preserve intact its business
organization and Assets and maintain its rights and franchises, and (iii) take
no action which would (a) materially adversely affect the ability of any Party
to obtain any Consents required for the transactions contemplated hereby, or (b)
materially adversely affect the ability of any Party to perform its covenants
and agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF REPUBLIC. Except as specifically permitted by
this Agreement or the Supplemental Letter, from the date of this Agreement until
the earlier of the Effective Time or the termination of this Agreement, Republic
covenants and agrees that Republic will not do or agree or commit to do, or
permit any of the Republic Subsidiaries to do or agree or commit to do, any of
the following without the prior written consent of the chief executive officer,
president, or chief financial officer of UPBNA, which consent shall not be
unreasonably withheld:
(a) amend the Articles, By-laws, or other governing
instruments of Republic or any Republic Subsidiary; or
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(b) incur any additional debt obligation for borrowed money
(other than indebtedness of Republic or the Republic Subsidiaries to each other)
in excess of an aggregate of $500,000 (for Republic and the Republic
Subsidiaries on a consolidated basis) except in the ordinary course of the
business of the Republic Subsidiaries consistent with past practices (which
shall include, for the Republic Subsidiaries that are depository institutions,
creation of deposit liabilities, purchases of federal funds, advances from the
Federal Reserve Bank or Federal Home Loan Bank, and entry into repurchase
agreements fully secured by U.S. government or agency securities), or impose, or
suffer the imposition, on any material Asset of Republic or any of the Republic
Subsidiaries of any Lien or permit any such Lien to exist (other than in
connection with deposits, repurchase agreements, bankers acceptances, "treasury
tax and loan" accounts established in the ordinary course of business, the
satisfaction of legal requirements in the exercise of trust-powers, and Liens in
effect as of the date hereof that are disclosed in the Republic Disclosure
Memorandum); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee benefit plans),
directly or indirectly, any shares, or any securities convertible into any
shares, of the capital stock of Republic or any of the Republic Subsidiaries, or
declare or pay any dividend or make any other distribution in respect of
Republic's or Republic Bank's capital stock, provided that Republic and Republic
Bank may (to the extent legally and contractually permitted to do so), but shall
not be obligated to, declare and pay regular quarterly cash dividends on the
shares of their respective common stock at a rate not in excess of $0.10 and
$0.27, respectively, per share with usual and regular record and payment dates
in accordance with past practice; provided further that any regular quarterly
dividend declared by the Board of Directors of Republic or Republic Bank for the
quarterly period during which the Effective Time occurs (it being understood by
the Parties that Republic and Republic Bank declare quarterly dividends in
arrears during the first month of the quarter following the quarter for which
the dividend is paid) shall be declared prior to the Effective Time, and shall
be payable in an amount determined by the Board of Directors of Republic and
Republic Bank not in excess of $0.10 and $0.27, respectively, multiplied by a
fraction the numerator of which shall be the number of full days in such
quarterly dividend period elapsed prior to the Effective Time and the
denominator of which shall be the number of days in such quarterly dividend
period; or
(d) except for this Agreement, issue, sell, pledge, encumber,
authorize the issuance of, enter into any Contract to issue, sell, pledge,
encumber, or authorize the issuance of, or otherwise permit to become
outstanding, any additional shares of its common stock or any other capital
stock, or any stock appreciation rights, or any option, warrant, conversion, or
other right to acquire any such stock, or any security convertible into any such
stock, except for issuance of its common stock upon exercise of options under
the Republic Stock Option Plan; or
(e) adjust, split, combine or reclassify any capital stock of
Republic or any of the Republic Subsidiaries or issue or authorize the issuance
of any other securities in respect of or in substitution for shares of Republic
Common Stock, or sell, lease, mortgage or otherwise dispose of or otherwise
encumber any shares of capital stock of any Republic Subsidiary (unless any such
shares of stock are sold or otherwise transferred to another Republic
Subsidiary) or any Asset having a book value in excess of $250,000 other than in
the ordinary course of business for
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reasonable and adequate consideration or except as provided in Section 7.2(e) of
the Republic Disclosure Memorandum; or
(f) except for purchases of investment securities acquired in
the ordinary course of business consistent with past practice, purchase any
securities or make any material investment, either by purchase of stock or
securities, contributions to capital, Asset transfers, or purchase of any
Assets, in any Person other than a wholly-owned Subsidiary of Republic, or
otherwise acquire direct or indirect control over any Person, other than in
connection with (i) foreclosures in the ordinar course of business, (ii)
acquisitions of control by a depository institution Subsidiary in its fiduciary
capacity, or (iii) the creation of new wholly-owned Subsidiaries organized to
conduct or continue activities otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of Republic or the Republic Subsidiaries, except in the
ordinary course of business consistent with past practice and disclosed in
Section 7.2(g) of the Republic Disclosure Memorandum or as required by Law; pay
any severance or termination pay or any bonus other than except in the ordinary
course of business consistent with past practices pursuant to written policies
or written Contracts in effect on the date of this Agreement and disclosed in
Section 7.2(g) of the Republic Disclosure Memorandum; enter into or amend any
severance agreements with officers of Republic or the Republic Subsidiaries;
grant any material increase in fees or other increases in compensation or other
benefits to directors of Republic or the Republic Subsidiaries; or voluntarily
accelerate the vesting of any stock options or other stock-based compensation or
employee benefits (other than the acceleration of vesting which occurs under a
benefit plan upon a change of control of Republic); or
(h) enter into or amend any employment Contract between
Republic or the Republic Subsidiaries and any Person (unless such amendment is
required by Law) that Republic does not have the unconditional right to
terminate without Liability (other than Liability for services already
rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of Republic or the
Republic Subsidiaries or terminate or withdraw from, or make any material change
adverse to Republic or the Republic Subsidiaries in or to, any existing employee
benefit plans of Republic or the Republic Subsidiaries other than any such
change that is required by Law or that, in the opinion of counsel, is necessary
or advisable to maintain the tax qualified status of any such plan, or make any
distributions from such employee benefit plans, except as required by Law, the
terms of such plans or consistent with past practices; or
(j) make any material change in any Tax or accounting methods
or systems of internal accounting controls, except as may be appropriate to
conform to changes in Tax Laws or regulatory accounting requirements or GAAP; or
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(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of Republic or the
Republic Subsidiaries for material money damages or restrictions upon the
operations of Republic or the Republic Subsidiaries; or
(l) except in the ordinary course consistent with past
practice, enter into, modify, amend, or terminate any material Contract
(excluding any loan Contract) or waive, release, compromise, or assign any
material rights or claims.
7.3 COVENANTS OF UPBNA. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, UPBNA
covenants and agrees that it shall not conduct its business in a manner and will
take no action which would (i) adversely affect its ability to consummate the
transactions contemplated hereby (ii) materially adversely affect the ability of
any Party to obtain any Consents required for the transactions contemplated
hereby, (iii materially adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement, or (iv) result in UPBNA entering
into an agreement with respect to an Acquisition Proposal with a third party
which could be reasonably expected to result in the Merger or the Bank Merger
not being consummated.
7.4 ADVERSE CHANGES IN CONDITION. Each Party agrees to give written
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (i) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it, (ii) would cause or constitute a
material breach of any of its representations, warranties, or covenants
contained herein, or (iii) is likely to impede or materially delay the
consummation of the Merger and the Bank Merger, and to use its reasonable
efforts to prevent or promptly to remedy the same.
7.5 REPORTS. Each Party and its Subsidiaries shall file all reports
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and, to the extent permitted by Law, shall
deliver to the other Party copies of all such reports promptly after the same
are filed. If financial statements are contained in any such reports filed with
the SEC, such financial statements will fairly present the consolidated
financial position of the entity filing such statements as of the dates
indicated and the consolidated results of operations, changes in shareholders'
equity, and cash flows for the periods then ended in accordance with GAAP
(subject in the case of interim financial statements to normal recurring
year-end adjustments that are not material). As of their respective dates, such
reports filed with the SEC will comply in all material respects with the
Securities Laws and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Any financial statements contained in any other
reports to another Regulatory Authority shall be prepared in accordance with
Laws applicable to such reports.
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ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 PROXY STATEMENT; SHAREHOLDER APPROVALS. The Parties shall prepare
and file the Proxy Statement with the SEC. Each of UPBNA and Republic shall
furnish all information concerning it and the holders of its capital stock as
the other Party may reasonably request in connection with such action. Republic
shall call a Shareholders' Meeting, to be held as soon as practicable after the
Proxy Statement is cleared by the SEC, for the purpose of voting upon approval
of this Agreement, the Plan of Merger, and such other related matters as it
deems appropriate. In connection with the Shareholders' Meeting, (i) the Board
of Directors of Republic shall recommend (subject to compliance with its
fiduciary duties as advised by counsel) to its shareholders the approval of the
Merger, and (ii) the Board of Directors (subject to compliance with its
fiduciary duties as advised by counsel) and officers of Republic shall use their
reasonable efforts to obtain shareholder approval. Republic shall cause Republic
Bank to call a Republic Bank Shareholders' Meeting, to be held as soon as
practicable after the Proxy Statement is cleared by the SEC, for the purpose of
voting upon approval of this Agreement, the Bank Plan of Merger, and such other
related matters as it deems appropriate. Republic shall vote the shares of
Republic Bank Common Stock held by Republic in favor of approval of the Bank
Plan of Merger at the Republic Bank Shareholders' Meeting, and the Board of
Directors and officers of Republic shall (subject to compliance with their
fiduciary duties as advised by counsel) use their reasonable efforts to obtain
approval of the Bank Plan of Merger by the holders of Republic Bank Common
Stock.
8.2 APPLICATIONS. UPBNA shall prepare and file within 21 days of the
date of this Agreement, and Republic shall cooperate in the preparation and,
where appropriate, filing of, applications with all Regulatory Authorities
having jurisdiction over the transactions contemplated by this Agreement seeking
the requisite Consents necessary to consummate the transactions contemplated by
this Agreement. The Parties shall deliver to each other copies of all filings,
correspondence and orders to and from all Regulatory Authorities in connection
with the transactions contemplated hereby as soon as practicable upon their
becoming available, except that copies of any proposed filings with Regulatory
Authorities shall be provided to the other Party at least five business days
prior to filing the same.
8.3 MERGER FILINGS. Upon the terms and subject to the conditions of
this Agreement, UPBNA Merger Subsidiary and Republic shall execute and file the
Florida Articles of Merger with the Secretary of State of the State of Florida
in connection with the Closing. Upon the terms and subject to the conditions of
this Agreement, UPBNA and Republic Bank shall execute and file the Bank Plan of
Merger with the Office of the Comptroller of the Currency in connection with the
Closing.
8.4 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this
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Agreement, including using its reasonable efforts to lift or rescind any Order
adversely affecting its ability to consummate the transactions contemplated
herein and to cause to be satisfied the conditions referred to in Article 9 of
this Agreement; PROVIDED, HOWEVER, that no party shall be required to seek any
Consents or take any other actions for the exercise of any rights or performance
of any obligations under the Fee Termination Agreement except as set forth in
such agreement. Each Party shall use, and shall cause each of its Subsidiaries
to use, its reasonable efforts to obtain all Consents necessary or desirable for
the consummation of the transactions contemplated by this Agreement; PROVIDED,
HOWEVER, that no party shall be required to seek any Consents or take any other
actions for the exercise of any rights or performance of any obligations under
the Fee Termination Agreement except as set forth in such agreement.
8.5 INVESTIGATION AND CONFIDENTIALITY.
(a) Prior to the Effective Time, each Party shall keep the
other Party advised of all material developments relevant to its business and to
consummation of the Merger and shall permit the other Party to make or cause to
be made such investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal conditions as the other
Party reasonably requests, provided that such investigation shall be reasonably
related to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. Neither Party shall be required to provide
access to or to disclose information where such access or disclosure would
violate or prejudice the rights of such Party's customers, jeopardize any
attorney-client privilege, contravene any Law, rule, regulation, order,
judgment, decree, fiduciary duty or binding agreement entered into prior to the
date of this Agreement, or provide UPBNA sensitive customer information not
otherwise available to UPBNA. The Parties will make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of the
preceding sentence apply. No investigation by a Party shall affect the
representations and warranties of the other Party.
(b) UPBNA agrees to keep and hold all information gathered pursuant to
this Agreement, or prior hereto, in confidence to the extent required by, and in
accordance with, the provisions of the confidentiality agreements entered into
between UPBNA and Republic prior to the date of this Agreement (the
"Confidentiality Agreements").
8.6 PRESS RELEASES. Prior to the Effective Time, Republic and UPBNA
shall consult with each other as to the form and substance of any press release
or other public disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, that nothing in this Section 8.6
shall be deemed to prohibit any Party from making any disclosure which its
counsel deems necessary or advisable in order to satisfy such Party's disclosure
obligations imposed by Law.
8.7 CERTAIN ACTIONS. Except with respect to this Agreement and the
transactions contemplated hereby, after the date of this Agreement, neither
Republic, the Republic Subsidiaries nor any Representatives thereof retained by
Republic or the Republic Subsidiaries shall directly or indirectly solicit any
Acquisition Proposal by any Person. Except to the extent necessary to comply
with the fiduciary duties of Republic's or Republic Bank's Board of Directors as
advised
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by counsel, Republic, the Republic Subsidiaries, or Representatives thereof
shall not furnish any non-public information that it is not legally obligated to
furnish, negotiate with respect to, or enter into any Contract with respect to,
any Acquisition Proposal, but Republic and Republic Bank may communicate
information about such an Acquisition Proposal to its shareholders if and to the
extent that it is required to do so in order to comply with its legal
obligations as advised by counsel. Republic shall promptly notify UPBNA orally
and in writing in the event that it receives any Acquisition Proposal. Republic
shall (i) immediately cease and cause to be terminated any existing activities,
discussions, or negotiations with any Persons conducted heretofore with respect
to any of the foregoing, and (ii) direct and use its reasonable efforts to cause
all of its Representatives not to engage in any of the foregoing.
8.8 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, UPBNA shall provide to
officers and employees of the Republic and any Republic Subsidiary, employee
benefits under employee benefit and welfare plans of UPBNA or the UPBNA
Subsidiaries on terms and conditions which when taken as a whole are
substantially similar to those currently provided by UPBNA or a UPBNA Subsidiary
to their similarly situated officers and employees. For purposes of
participation, vesting, and (except in the case of retiremen plans) benefit
accrual under such employee benefit plans, the service of the employees of the
Republic and any Republic Subsidiary prior to the Effective Time shall be
treated as service with UPBNA or a UPBNA Subsidiary participating in such
employee benefit plans.
(b) UPBNA shall, and shall cause the UPBNA Subsidiaries to,
honor in accordance with their terms the contracts, arrangements, commitments or
understandings disclosed in Section 5.15(i) of the Republic Disclosure
Memorandum.
8.9 INDEMNIFICATION.
(a) After the Effective Time, UPBNA shall indemnify, defend
and hold harmless the present and former directors, officers, employees, and
agents of the Republic Companies (each, an "Indemnified Party") (including any
person who becomes a director, officer, employee, or agent prior to the
Effective Time) against all Liabilities (including reasonable attorneys' fees,
and expenses, judgments, fines and amounts paid in settlement) arising out of
actions or omissions occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement and the Fee Termination Agreement)
to the full extent permitted under any of Florida Law, national banking law, by
the Articles and By-laws of the Republic Companies as in effect on the date
hereof, or any indemnity agreements entered into prior to the date hereof by
Republic or Republic Bank and any director, officer, employee, or agent of
Republic or Republic Bank, including provisions relating to advances of expense
incurred in the defense of any Litigation. Without limiting the foregoing, in
any case in which approval by UPBNA is required to effectuate any
indemnification, UPBNA shall direct, at the election of the Indemnified Party,
that the determination of any such approval shall be made by independent counsel
mutually agreed upon between UPBNA and the Indemnified Party.
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(b) Any Indemnified Party wishing to claim indemnification
under paragraph (a) of this Section 8.9, upon learning of any such Liability or
Litigation, shall promptly notify UPBNA thereof, provided that the failure so to
notify shall not affect the obligations of UPBNA under this Section 8.9 unless
and to the extent such failure materially increases UPBNA's liability under this
Section 8.9. In the event of any such Litigation (whether arising before or
after the Effective Time), (i) UPBNA shall have the right to assume the defense
thereof and UPBNA shall not be liable to such Indemnified Parties for any legal
expenses of other counsel or any other expenses subsequently incurred by such
Indemnified Parties in connection with the defense thereof, except that if UPBNA
elects not to assume such defense or counsel for the Indemnified Parties advises
that there are substantive issues which raise conflicts of interest between
UPBNA and the Indemnified Parties, the Indemnified Parties may retain counsel
satisfactory to them, and UPBNA shall pay all reasonable fees and expenses of
such counsel for the Indemnified Parties promptly as statements therefor are
received; provided, that UPBNA shall be obligated pursuant to this paragraph (b)
to pay for only one firm of counsel for all Indemnified Parties in any
jurisdiction, (ii) the Indemnified Parties will cooperate in the defense of any
such Litigation, and (iii) UPBNA shall not be liable for any settlement effected
without its prior written consent, which consent shall not be unreasonably
withheld; and provided further that UPBNA shall not have any obligation
hereunder to any Indemnified Party when and if a court of competent jurisdiction
shall determine, and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable Law.
(c) If UPBNA or any of its successors or assigns shall
consolidate with or merge into any other Person and shall not be the continuing
or surviving Person of such consolidation or merger or shall transfer all or
substantially all of its assets to any Person, then and in each case, proper
provision shall be made so that the successors and assigns of UPBNA, in the case
of a merger, or the transferee of all or substantially all of its assets, shall
specifically assume the obligations set forth in this Section 8.9.
(d) UPBNA shall pay all reasonable costs, including
attorneys' fees, that may be incurred by any Indemnified Party enforcing the
indemnity and other obligations provided for in this Section 8.9.
(e) The provisions of this Section 8.9 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party and his
or her heirs or representatives.
8.10 STATE TAKEOVER LAWS. Republic shall use, to the extent necessary,
its reasonable efforts to take all necessary steps to exempt the transactions
contemplated by this Agreement from any applicable "moratorium," "fair price,"
"business combination," "control share," or other anti-takeover laws, including
Sections 607.0901 and 607.0902 of the FBCA.
8.11 UPBNA MERGER SUBSIDIARY ORGANIZATION. UPBNA shall organize UPBNA
Merger Subsidiary under the Laws of the State of Florida. Prior to the Effective
Time, the outstanding capital stock of UPBNA Merger Subsidiary shall consist of
1,000 shares of UPBNA Merger Subsidiary Common Stock, all of which shall be
owned by UPBNA. Prior to the
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Effective Time, UPBNA Merger Subsidiary shall not (i) conduct any business
operations whatsoever, or (ii) enter into any Contract or agreement of any kind,
acquire any Assets or incur any Liability, except as may be specifically
contemplated by this Agreement or the Plan of Merger or as the Parties may
otherwise agree. UPBNA as the sole shareholder of UPBNA Merger Subsidiary, shall
vote prior to the Effective Time the shares of UPBNA Merger Subsidiary Common
Stock in favor of the Plan of Merger.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective obligations
of each Party to perform this Agreement and consummate the Merger, the Republic
Dissolution, the Bank Merger, and the other transactions contemplated hereby are
subject to the satisfaction of the following conditions, unless waived by both
Parties pursuant to Section 11.6 of this Agreement:
(a) SHAREHOLDER APPROVAL. The shareholders of Republic and
Republic Bank shall have approved this Agreement, the Plan of Merger, and the
Bank Plan of Merger, as appropriate, and the consummation of the transactions
contemplated hereby and thereby, including the Merger, the Republic Dissolution,
and the Bank Merger, as and to the extent required by Law, or by the provisions
of any governing instruments.
(b) REGULATORY APPROVALS. All Consents of, filings and
registrations with, and notifications to, all Regulatory Authorities required
for consummation of the Merger, the Republic Dissolution, and the Bank Merger
shall have been obtained or made and shall be in full force and effect and all
waiting periods required by Law shall have expired. No Consent obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall be conditioned or restricted in a manner (other than
matters relating to the raising of additional capital or the disposition of
Assets or deposit Liabilities and associated branches) which in the reasonable
judgment of the Board of Directors of UPBNA would so materially adversely impact
the financial or economic benefits of the transactions contemplated by this
Agreement that, had such condition or requirement been known, UPBNA would not,
in its reasonable judgment, have entered into this Agreement.
(c) CONSENTS AND APPROVALS. Each Party shall have obtained
any and all Consents required for consummation of the Merger, the Republic
Dissolution, and the Bank Merger (other than those referred to in Section 9.1(b)
of this Agreement) or for the preventing of any Default under any Contract or
Permit of such Party which, if not obtained or made, is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on such Party.
(d) LEGAL PROCEEDINGS. No court or governmental or
regulatory authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced, or entered by Law or Order (whether temporary,
preliminary, or permanent) or taken any other action which prohibits, restricts,
or makes illegal consummation of the transactions contemplated by this
Agreement.
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(e) OTHER CONDITIONS. All of the conditions precedent to
the consummation of the Republic Dissolution and the Bank Merger as set forth in
the Bank Plan of Merger shall have been fulfilled.
9.2 CONDITIONS TO OBLIGATIONS OF UPBNA. The obligations of UPBNA to
perform this Agreement and consummate the Merger, the Bank Merger, and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by UPBNA pursuant to Section 11.6(a) of this
Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.2(a), the accuracy of the representations and warranties of Republic
set forth in this Agreement shall be assessed as of the date of this Agreement
and as of the Effective Time with the same effect as though all such
representations and warranties had been made on and as of the Effective Time
(provided that representations and warranties which are confined to a specific
date shall speak only as of such date). The representations and warranties of
Republic set forth in Sections 5.1, 5.2, 5.3, 5.19, and 5.20 of this Agreement
shall be true and correct in all material respects. There shall not exist
inaccuracies in the representations and warranties of Republic set forth in this
Agreement (including the representations and warranties set forth in Sections
5.1, 5.2, 5.3, 5.19, and 5.20) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a Material Adverse Effect on
Republic, provided that, for purposes of this sentence only, those
representations and warranties which are qualified by references to "material"
or "Material Adverse Effect" or "Knowledge" shall be deemed not to include such
qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all
of the agreements and covenants of Republic to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time shall have been duly performed and complied with in all
material respects.
(c) CERTIFICATES. Republic shall have delivered to UPBNA
(i) a certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the effect that
the conditions of its obligations set forth in Sections 9.2(a) and 9.2(b) of
this Agreement have been satisfied, (ii) certified copies of resolutions duly
adopted by Republic's Board of Directors and shareholders evidencing the taking
of all corporate action necessary to authorize the execution, delivery, and
performance of this Agreement and the Plan of Merger, and the consummation of
the transactions contemplated hereby, all in such reasonable detail as UPBNA
shall request, and (iii) certified copies of resolutions duly adopted by
Republic Bank's Board of Directors and shareholders evidencing the taking of all
corporate action necessary to authorize the execution, delivery, and performance
of the Bank Plan of Merger, and the consummation of the transactions
contemplated thereby, all in such reasonable detail as UPBNA shall request.
9.3 CONDITIONS TO OBLIGATIONS OF REPUBLIC. The obligations of Republic
to perform this Agreement and consummate the Merger and the Bank Merger and the
other
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transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Republic pursuant to Section 11.6(b) of
this Agreement.
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this
Section 9.3(a), the accuracy of the representations and warranties of UPBNA set
forth in this Agreement shall be assessed as of the date of this Agreement and
as of the Effective Time with the same effect as though all such representations
and warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of UPBNA set
forth in Sections 6.1, 6.2, 6.6, and 6.7 of this Agreement shall be true and
correct in all material respects. There shall not exist inaccuracies in the
representations and warranties of UPBNA set forth in this Agreement (including
the representations and warranties set forth in Sections 6.1, 6.2, 6.6, and 6.7)
such that the aggregate effect of such inaccuracies has, or is reasonably likely
to have, a Material Adverse Effect on UPBNA; provided that, for purpose of this
sentence only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" or "Knowledge" shall be
deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all
of the agreements and covenants of UPBNA to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Time shall have been duly performed and complied with in all
material respects.
(c) CERTIFICATES. UPBNA shall have delivered to Republic
(i) a certificate, dated as of the Effective Time and signed on its behalf by
its chief executive officer and its chief financial officer, to the effect that
the conditions of its obligations set forth in Sections 9.3(a) and 9.3(b) of
this Agreement have been satisfied, and (ii) certified copies of resolutions
duly adopted by UPBNA's and UPBNA Merger Subsidiary's Boards of Directors and
shareholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this Agreement, the Plan of
Merger, and the Bank Plan of Merger, and the consummation of the transactions
contemplated thereby, all in such reasonable detail as Republic shall request.
ARTICLE 10
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this
Agreement, the Plan of Merger, or the Bank Plan of Merger and notwithstanding
the approval of this Agreement, the Merger or the Bank Plan of Merger by the
shareholders of UPBNA, Republic or Republic Bank, respectively, this Agreement,
the Plan of Merger, and the Bank Plan of Merger may be terminated and the Merger
and the Bank Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of UPBNA
and the Board of Directors of Republic; or
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(b) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any representation or
warranty contained in this Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Republic and Section 9.3(a) in
the case of UPBNA or in material breach of any covenant or other agreement
contained in this Agreement) in the event of an inaccuracy of any representation
or warranty of the other Party contained in this Agreement which cannot be or
has not been cured within 30 days after the giving of written notice to the
breaching Party of such inaccuracy and which inaccuracy would provide the
terminating Party the ability to refuse to consummate the Merger or the Bank
Merger under the applicable standard set forth in Section 9.2(a) of this
Agreement in the case of Republic and Section 9.3(a) of this Agreement in the
case of UPBNA; or
(c) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any representation or
warranty contained in this Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Republic and Section 9.3(a) in
the case of UPBNA or in material breach of any covenant or other agreement
contained in this Agreement) in the event of a material breach by the other
Party of any covenant or agreement contained in this Agreement which cannot be
or has not been cured within 30 days after the giving of written notice to the
breaching Party of such breach; or
(d) By the Board of Directors of either Party in the event
(i) any Consent of any Regulatory Authority required for consummation of the
Merger or the Bank Merger and the other transactions contemplated hereby shall
have been denied by final nonappealable action of such authority or if any
action taken by such authority is not appealed within the time limit for appeal,
(ii) the shareholders of Republic fail to vote their approval of this Agreement
and the transactions contemplated hereby as required by the FBCA and this
Agreement at the Shareholders' Meeting where the transactions were presented to
such shareholders for approval and voted upon, or (iii) the shareholders of
Republic Bank fail to vote their approval of the Bank Plan of Merger and the
transactions contemplated thereby as required by the National Bank Act and the
Bank Plan of Merger at the Republic Bank Shareholders' Meeting where the
transactions were presented to such shareholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the event
that the Merger shall not have been consummated by October 31, 1999, if the
failure to consummate the transactions contemplated hereby on or before such
date is not caused by any willful breach of this Agreement by the Party electing
to terminate pursuant to this Section 10.1(e).
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement and the Bank Plan of Merger pursuant to Section
10.1 of this Agreement, this Agreement shall become void and have no effect,
except that (i) the provisions of this Sections 8.5(b), 8.6, 10.2, 11.2 and 11.3
of this Agreement shall survive any such termination and abandonment, and (ii) a
termination pursuant to the terms of this Agreement shall not relieve the
breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement. The Fee Termination Agreement
shall be governed by its own terms as to its termination.
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10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Effective Time except this Section 10.3, Sections
8.8 and 8.9, and Articles 2, 3, 4, and 11 of this Agreement. The respective
terms of the Support Agreements and the Supplemental Letter shall survive the
Effective Time.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" with respect to a Party shall mean
any tender offer or exchange offer or any proposal for a merger, acquisition of
all of the stock or assets of, or other business combination involving such
Party or any of its Subsidiaries or the acquisition of a substantial equity
interest in, or a substantial portion of the assets of, such Party or any of its
Subsidiaries.
"AFFILIATE" of a Person shall mean any other Person,
directly or indirectly through one or more intermediaries, controlling,
controlled by, or under common control with such Person.
"AGREEMENT" shall mean this Agreement, including the Fee
Termination Agreement and the Exhibits delivered pursuant hereto and
incorporated herein by reference.
"ASSETS" of a Person shall mean all of the assets,
properties, businesses, and rights of such Person of every kind, nature,
character and description, whether real, personal or mixed, tangible or
intangible, accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in whole or in part, whether or not
carried on the books and records of such Person, and whether or not owned in the
name of such Person or any Affiliate of such Person and wherever located.
"BANK CERTIFICATE OF MERGER" shall mean the Certificate of
Merger to be issued by the Office of the Comptroller of the Currency, relating
to the Bank Merger as contemplated by Section 1.1 of this Agreement.
"BANK PLAN OF MERGER" shall mean the Bank Plan of Merger
in the form of Exhibit 2.
"BHC ACT" shall mean the federal Bank Holding Company Act
of 1956, as amended.
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"CLOSING DATE" shall mean the date on which the Closing occurs.
"CONSENT" shall mean any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order or Permit.
"CONTRACT" shall mean any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease, obligation,
plan, practice, restriction, understanding, or undertaking of any kind or
character, or other document to which any Person is a party or that is binding
on any Person or its capital stock, Assets or business.
"DEFAULT" shall mean (i) any breach or violation of or default under
any Contract, Order, or Permit, (ii) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute a breach or
violation of or default under any Contract, Order, or Permit, or (iii) any
occurrence of any event that with or without the passage of time or the giving
of notice would give rise to a right to terminate or revoke, change the current
terms of, or renegotiate or to accelerate, increase or impose any Liability
under, any Contract, Order or Permit.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to pollution or
protection of the environment (including ambient air, surface water, ground
water, land surface or subsurface strata) and which are administered,
interpreted or enforced by the United States Environmental Protection Agency and
state and local agencies with jurisdiction over, and including common law in
respect of, pollution or protection of the environment, including the
Comprehensive Environmental Response Compensation and Liability Act, as amended,
42 U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery Act,
as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other Laws relating to
emissions, discharges, releases, or threatened releases of any Hazardous
Material, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of any Hazardous
Material.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA AFFILIATE" shall mean any trade or business, whether or not
incorporated, that together with Republic would be deemed a "single employer"
within the meaning of section 4001(b) of ERISA.
"EXHIBITS" shall mean the Exhibits so marked, copies of which are
attached to this Agreement. Such Exhibits are hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached hereto.
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"FBCA" shall mean the Florida Business Corporation Act, as amended.
"FEE TERMINATION AGREEMENT" shall mean the Fee Termination Agreement of
even date herewith entered into by UPBNA and Republic, in substantially the form
of Exhibit 3.
"FLORIDA ARTICLES OF DISSOLUTION" shall mean the Articles of
Dissolution to be executed by Republic and filed with the Secretary of State of
the State of Florida relating to the Merger as contemplated by Section 1.1 of
this Agreement.
"FLORIDA ARTICLES OF MERGER" shall mean the Articles of Merger to be
executed by Republic and UPBNA Merger Subsidiary and filed with the Secretary of
State of the State of Florida relating to the Merger as contemplated by Section
1.1 of this Agreement.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance, hazardous
material, hazardous waste, regulated substance, or toxic substance (as those
terms are defined by any applicable Environmental Laws) and (ii) any chemicals,
pollutants, contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of governmental authorities and any
polychlorinated biphenyls).
"HSR ACT" shall mean Section 7A of the ▇▇▇▇▇▇▇ Act, as added by Title
II of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
the rules and regulations promulgated thereunder.
"INTELLECTUAL PROPERTY" shall mean copyrights, patents, trademarks,
service marks, service names, trade names, applications therefor, technology
rights and licenses, computer software (including any source or object codes
therefor or documentation relating thereto), trade secrets, franchises,
know-how, inventions, and other intellectual property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986,
as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" as used with respect to a Person (including references to
such Person being aware of a particular matter) shall mean those facts that are
known by the Chairman, President, Chief Financial Officer, Chief Accounting
Officer, Chief Credit Officer, or General Counsel of such Person.
"LAW" shall mean any code, law, ordinance, regulation, reporting or
licensing requirement, rule, or statute applicable to a Person or its Assets,
Liabilities or business, including those promulgated, interpreted, or enforced
by any Regulatory Authority.
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"LIABILITY" shall mean any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost, or expense (including costs
of investigation, collection, and defense), claim, deficiency, guaranty, or
endorsement of or by any Person (other than endorsements of notes, bills,
checks, and drafts presented for collection or deposit in the ordinary course of
business) of any type, whether accrued, absolute or contingent, liquidated or
unliquidated, matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title retention,
or other security arrangement, or any adverse right or interest, charge, or
claim of any nature whatsoever of, on, or with respect to any property or
property interest, other than (i) Liens for current Taxes upon the assets or
properties of a Party or its Subsidiaries which are not yet due and payable, and
(ii) for depository institution Subsidiaries of a Party, pledges to secure
deposits and other Liens incurred in the ordinary course of the banking
business.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or other
examination or investigation, hearing, inquiry, administrative or other
proceeding, or notice (written or oral) by any Person alleging potential
Liability or requesting information relating to or affecting a Party, its
business, its Assets (including Contracts related to it), or the transactions
contemplated by this Agreement, but shall not include regular, periodic
examinations of depository institutions and their Affiliates by Regulatory
Authorities.
"MATERIAL ADVERSE EFFECT" on a Party shall mean an event, change, or
occurrence which, individually or together with any other event, change, or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of such Party and its Subsidiaries, taken as
a whole, or (ii) the ability of such Party to perform its obligations under this
Agreement or to consummate the Merger, the Bank Merger or the other transactions
contemplated by this Agreement in accordance with applicable Law, provided that
"Material Adverse Effect" and "material adverse impact" shall not be deemed to
include the impact of (a) changes in banking or other Laws of general
applicability or interpretations thereof by courts or governmental authorities,
(b) changes in GAAP or regulatory accounting principles generally applicable to
banks and their holding companies, (c) actions and omissions of a Party (or any
of its Subsidiaries) taken with the prior written consent of the other Party,
(d) changes in economic conditions or interest rates generally affecting
financial institutions, or (e) the direct effects of compliance with this
Agreement (including the expense associated with the employment agreements of
Republic and vesting of benefits under the various employee benefit plans of
Republic and the Republic Stock Option Plan as a result of the Merger
constituting a change of control) on the operating performance of the Parties,
including expenses incurred by the Parties in consummating the transactions
contemplated by the Agreement.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"OPERATING PROPERTY" shall mean any property owned by the Party in
question or by any of its Subsidiaries or in which such Party or Subsidiary
holds a security interest, and, where required by the context, includes the
owner or operator of such property, but only with respect to such property.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or writ
of any federal, state, local, or foreign or other court, arbitrator, mediator,
tribunal, administrative agency, or Regulatory Authority.
"PARTICIPATION FACILITY" shall mean any facility or property in which
the Party in question or any of its Subsidiaries participates in the management
and, where required by the context, said term means the owner or operator of
such facility or property, but only with respect to such facility or property.
"PARTY" shall mean either Republic or UPBNA, and "PARTIES" shall mean
both Republic and UPBNA.
"PERMIT" shall mean any federal, state, local, and foreign governmental
approval, authorization, certificate, easement, filing, franchise, license,
notice, permit, or right to which any Person is a party or that is or may be
binding upon or inure to the benefit of any Person or its securities, Assets or
business.
"PERSON" shall mean a natural person or any legal, commercial, or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group acting in concert, or any person acting in a
representative capacity.
"PLAN OF MERGER" shall mean the plan of merger providing for the
Merger, in substantially the form of Exhibit 1.
"PROXY STATEMENT" shall mean the joint proxy statement used by Republic
and Republic Bank to solicit the approval of their respective shareholders of
the transactions contemplated by this Agreement and the Bank Plan of Merger.
"REGULATORY AUTHORITIES" shall mean, collectively, the Federal Trade
Commission, the United States Department of Justice, the Board of the Governors
of the Federal Reserve System, the Office of the Comptroller of the Currency,
the Federal
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Deposit Insurance Corporation, all state regulatory agencies having jurisdiction
over the Parties and their respective Subsidiaries, the NASD, and the SEC.
"REPRESENTATIVE" shall mean any investment banker, financial advisor,
attorney, accountant, consultant, or other representative of a Person.
"REPUBLIC BANK COMMON STOCK" shall mean the $1.25 par value common
stock of Republic Bank.
"REPUBLIC BANK SHAREHOLDERS' MEETING" shall mean the meeting of the
shareholders of Republic Bank to be held pursuant to Section 8.1 of this
Agreement, including any adjournment or adjournments thereof.
"REPUBLIC COMMON STOCK" shall mean the $.01 par value common stock of
Republic.
"REPUBLIC COMPANIES" shall mean Republic and Republic Bank.
"REPUBLIC DISCLOSURE MEMORANDUM" shall mean the written information
entitled "Republic Disclosure Memorandum" delivered prior to the date of this
Agreement to UPBNA describing in reasonable detail the matters contained therein
and, with respect to each disclosure made therein, specifically referencing each
Section of this Agreement under which such disclosure is being made.
"REPUBLIC FINANCIAL STATEMENTS" shall mean (i) the consolidated balance
sheets (including related notes and schedules, if any) of Republic as of
September 30, 1998, and as of December 31, 1997 and 1996, and the related
statements of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) for the nine months ended September 30,
1998, and for each of the fiscal years ended December 31, 1997, 1996, and 1995,
as filed by Republic in SE Documents, and (ii) the consolidated balance sheets
of Republic (including related notes and schedules, if any) and related
statements of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) included in SEC Documents with respect to
periods ended subsequent to September 30, 1998.
"REPUBLIC STOCK OPTION PLAN" shall mean the existing stock option plan
of Republic designated as the 1998 Stock Option Plan.
"REPUBLIC SUBSIDIARIES" shall mean the Subsidiaries of Republic, which
shall include Republic Subsidiaries described in Section 5.4 of this Agreement
and any corporation, bank, or other organization acquired as a Subsidiary of
Republic in the future and owned by Republic at the Effective Time.
"RIGHTS" shall mean all arrangements, calls, commitments, Contracts,
options, rights to subscribe to, scrip, warrants, or other binding obligations
of any character
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whatsoever by which a Person is or may be bound to issue additional shares of
its capital stock or other Rights, or securities or rights convertible into or
exchangeable for, shares of the capital stock of a Person.
"SEC" shall mean the Securities and Exchange Commission.
"SEC DOCUMENTS" shall mean all forms, proxy statements, registration
statements, reports, schedules, and other documents filed, or required to be
filed, by a Party or any of its Subsidiaries with any Regulatory Authority
pursuant to the Securities Law.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the Investment
Company Act of 1940, as amended, the Investment Advisors Act of 1940, as
amended, the Trust Indenture Act of 1939, as amended, and the rules and
regulations of any Regulatory Authority promulgated thereunder.
"SHAREHOLDERS" shall mean Rebank Netherlands Antilles, N.V., a
Netherlands Antilles corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ (collectively, the "Shareholders").
"SHAREHOLDERS' MEETING" shall mean the meeting of the shareholders of
Republic to be held pursuant to Section 8.1 of this Agreement, including any
adjournment or adjournments thereof.
"SUBSIDIARIES" shall mean all those corporations, banks, associations,
or other entities of which the entity in question owns or controls 10% or more
of the outstanding equity securities either directly or through an unbroken
chain of entities as to each of which 10% or more of the outstanding equity
securities is owned directly or indirectly by it; provided, there shall not be
included any such entity acquired through foreclosure or any such equity the
equity securities of whic are owned or controlled in a fiduciary capacity.
"SUPPLEMENTAL LETTER" shall mean the supplemental letter of even date
herewith relating to certain understandings and agreements in addition to those
included in this Agreement in substantially the form of Exhibit 5.
"SURVIVING BANK" shall mean UPBNA as the surviving bank resulting from
the Bank Merger.
"SURVIVING CORPORATION" shall mean Republic as the surviving
corporation resulting from the Merger.
"TAX" or "TAXES" shall mean all taxes, charges, fees, levies or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll,
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employment, excise, estimated, severance, stamp, occupation, property or other
taxes, customs duties, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional
amount imposed by any taxing authority (domestic or foreign).
"TBCA" shall mean the Tennessee Business Corporation Act.
"UPBNA COMMON STOCK" shall mean the $10.00 par value common stock of
UPBNA.
"UPBNA MERGER SUBSIDIARY" shall mean UPBNA Merger Subsidiary, a
wholly-owned subsidiary of UPBNA organized under the Laws of the State of
Florida.
"UPBNA MERGER SUBSIDIARY COMMON STOCK" shall mean the $1.00 par value
common stock of UPBNA Merger Subsidiary.
(b) The terms set forth below shall have the meanings ascribed thereto
in the referenced sections:
Bank Cash Payment Amount.............................. Section 3.1
Bank Merger........................................... Section 3.1
Cash Payment Amount................................... Section 3.1
Closing............................................... Section 1.4
Confidentiality Agreements Section 8.5(b)
Effective Time........................................ Section 1.5
ERISA Affiliate....................................... Section 5.14(c)
Exchange Agent........................................ Section 4.1
Indemnified Party..................................... Section 8.9(a)
Merger................................................ Section 1.1
Republic Benefit Plans................................ Section 5.14(a)
Republic Contracts.................................... Section 5.15
Republic Dissolution ................................. Section 1.1
Republic ERISA Plan................................... Section 5.14(a)
Republic Options...................................... Section 3.5
Republic Pension Plan................................. Section 5.14(a)
Republic SEC Reports.................................. Section 5.17
Software.............................................. Section 5.22
(c) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
-41-
11.2 EXPENSES.
(a) Except as otherwise provided in this Section 11.2,
each of the Parties shall bear and pay all direct costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including filing, registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of the Parties shall bear and pay the
filing fees payable in connection with the Proxy Statement and printing costs
incurred in connection with the printing of the Proxy Statement based on the
relative Asset sizes of the Parties at September 30, 1998.
(b) Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated damages for the willful
breach by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party.
11.3 BROKERS AND FINDERS. Except for ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. as
to Republic, each of the Parties represents and warrants that neither it nor any
of its officers, directors, employees, or Affiliates has employed any broker or
finder or incurred any Liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions, or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a claim
by any broker or finder based upon his or its representing or being retained by
or allegedly representing or being retained by Republic or UPBNA other than
those disclosed in the previous sentence, each of Republic and UPBNA, as the
case may be, agrees to indemnify and hold the other Party harmless of and from
any Liability incurred by such party in respect of any such claim.
11.4 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the other documents and instruments referred
to herein) and the Confidentiality Agreements constitute the entire agreement
between the Parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereto,
written or oral. Nothing in this Agreement expressed or implied is intended to
confer upon any Person, other than the Parties or their respective successors,
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, other than as provided in Section 8.9 of this Agreement.
11.5 AMENDMENTS. To the extent permitted by Law, this Agreement
may be amended by a subsequent writing signed by each of the Parties upon the
approval of the Boards of Directors of each of the Parties, whether before or
after shareholder approval of this Agreement has been obtained; provided, that
after any such approval by the holders of Republic Common Stock, except as
contemplated herein, there shall be made no amendment that has any of the
effects set forth in Section 607.1103(8) of the FBCA without the further
approval of such shareholders.
11.6 WAIVERS.
(a) Prior to or at the Effective Time, UPBNA, acting
through its Board of Directors, chief executive officer, or other authorized
officer, shall have the right to waive any
-42-
Default in the performance of any term of this Agreement by Republic, to waive
or extend the time for the compliance or fulfillment by Republic of any and all
of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of UPBNA under this Agreement, except
any condition which, if not satisfied, would result in the violation of any Law.
No such waiver shall be effective unless in writing signed by a duly authorized
officer of UPBNA.
(b) Prior to or at the Effective Time, Republic, acting
through its Board of Directors, chief executive officer, or other authorized
officer, shall have the right to waive any Default in the performance of any
term of this Agreement by UPBNA, to waive or extend the time for the compliance
or fulfillment by UPBNA of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to its obligations of
Republic under this Agreement, except any condition which, if not satisfied,
would result in the violation of any Law. No such waiver shall be effective
unless in writing signed by a duly authorized officer of Republic.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no manner affect the right
of such Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach of a waiver of any
other condition or of the breach of any other term of this Agreement.
11.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any Party hereto
(whether by operation of Law or otherwise) without the prior written consent of
the other Party. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
11.8 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
registered or certified mail, postage pre-paid, or by courier or overnight
carrier, to the person at the addresses set forth below (or at such other
address as may be provided hereunder), and shall be deemed to have been
delivered as of the date so delivered. A copy of any notice or other
communication mailed or sent by overnight carrier shall, on the date of mailing
or delivery to overnight carrier, be sent by facsimile transmission.
Republic: REPUBLIC BANKING CORPORATION
OF FLORIDA
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to Counsel: MURAI, WALD, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
UPBNA: UNION PLANTERS BANK,
NATIONAL ASSOCIATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to Counsel: UNION PLANTERS BANK, NATIONAL ASSOCIATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇ House, Jr., Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ & BIRD LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Tennessee, except to the
extent the Laws of the United States apply to the Bank Merger and the Law of the
State of Florida apply to the Merger, without regard to any applicable conflicts
of Laws.
11.10 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
11.11 CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
11.12 INTERPRETATIONS. Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved against any
party, whether under any rule of construction or otherwise. No party to this
Agreement shall be considered the draftsman. The Parties acknowledge and agree
that this Agreement has been reviewed, negotiated, and accepted by all Parties
and their attorneys and shall be construed and interpreted according to the
ordinary
-44-
meaning of the words used so as fairly to accomplish the purposes and
intentions of all parties hereto.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States o any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
-45-
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: REPUBLIC BANKING CORPORATION
OF FLORIDA
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------- ------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Secretary President and Chief Executive
Officer
[CORPORATE SEAL]
ATTEST: UNION PLANTERS BANK,
NATIONAL ASSOCIATION
By:/s/ ▇. ▇▇▇▇▇ HOUSE, JR. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ------------------------------------
▇. ▇▇▇▇▇ House, Jr. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary President and Chief Operating
Officer
[CORPORATE SEAL]
-46-
EXHIBIT 1
PLAN OF MERGER
OF
UPBNA MERGER SUBSIDIARY
INTO AND WITH
REPUBLIC BANKING CORPORATION OF FLORIDA
Pursuant to this Plan of Merger ("Plan of Merger"), dated as
of this __ day of __________, 1999, UPBNA MERGER SUBSIDIARY ("UPBNA Merger
Sub"), a corporation organized and existing under the laws of the State of
Florida and a newly-formed, wholly-owned subsidiary of UNION PLANTERS BANK,
NATIONAL ASSOCIATION ("UPBNA"), a national banking association, shall be merged
with and into REPUBLIC BANKING CORPORATION OF FLORIDA ("Republic"), a
corporation organized and existing under the laws of the State of Florida.
ARTICLE 1
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
1.1 "EFFECTIVE TIME" shall mean the date and time on which the
Merger becomes effective pursuant to the Laws of the State of Florida as defined
in Section 2.2 of this Plan of Merger.
1.2 "EXCHANGE AGENT" shall mean the exchange agent selected by
UPBNA.
1.3 "FBCA" shall mean the Florida Business Corporation Act.
1.4 "FLORIDA ARTICLES OF MERGER" shall mean the Articles of
Merger to be executed by Republic and UPBNA Merger Sub and filed with the
Secretary of State of the State of Florida relating to the Merger as
contemplated by Section 2.1 of this Plan of Merger.
1.5 "LAW" shall have the meaning set forth in the Merger
Agreement.
1.6 "MERGER" shall mean the merger of UPBNA Merger Sub into
and with Republic as provided in Section 2.1 of this Plan of Merger.
1.7 "MERGER AGREEMENT" shall mean the Agreement and Plan of
Reorganization, dated as of February 22, 1999 by and between Republic and UPBNA.
1.8 "REPUBLIC COMMON STOCK" shall mean the $.01 par value
common stock of Republic.
1.9 "REPUBLIC SUBSIDIARIES" shall mean the Subsidiaries of
Republic, which shall include such Subsidiaries described in Section 5.4 of the
Merger Agreement and any corporation, bank, or other organization acquired as a
Subsidiary of Republic in the future and owned by Republic at the Effective
Time.
1.10 "SUBSIDIARIES" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or controls
10% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 10% or more of the outstanding
equity securities is owned directly or indirectly by its parent; provided, there
shall not be included any such entity acquired through foreclosure or any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity.
1.11 "SURVIVING CORPORATION" shall refer to Republic as the
surviving corporation resulting from the Merger.
1.12 "UPBNA MERGER SUB COMMON STOCK" shall mean the $1.00 par
value common stock of UPBNA Merger Sub.
ARTICLE 2
TERMS OF MERGER
2.1 MERGER. Subject to the terms and conditions set forth in
this Plan of Merger, at the Effective Time, UPBNA Merger Sub shall be merged
with and into Republic in accordance with the provisions of Sections 607.1101 of
the FBCA and with the effect provided in Sections 607.1106 of the FBCA. Republic
shall be the Surviving Corporation of the Merger and shall continue to be
governed by the Laws of the State of Florida.
2.2 EFFECTIVE TIME. The Merger and the other transactions
contemplated by this Plan of Merger shall become effective on the date and at
the time the Florida Articles of Merger reflecting the Merger shall become
effective with the Secretary of State of the State of Florida.
2.3 ARTICLES OF INCORPORATION. The Articles of Incorporation
(the "Articles") of Republic in effect immediately prior to the Effective Time,
shall be the Articles of the Surviving Corporation until otherwise amended or
repealed.
2.4 BYLAWS. The Bylaws (the "Bylaws") of Republic in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation until otherwise amended or repealed.
-2-
2.5 DIRECTORS AND OFFICERS. The directors of UPBNA Merger Sub
in office immediately prior to the Effective Time, together with such additional
persons as may thereafter be elected, shall serve as the directors of the
Surviving Corporation from and after the Effective Time in accordance with the
Bylaws of the Surviving Corporation. The officers of UPBNA Merger Sub in office
immediately prior to the Effective Time, together with such additional persons
as may thereafter be elected, shall serve as the officers of the Surviving
Corporation from and after the Effective Time in accordance with the Bylaws of
the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of UPBNA Merger Sub, Republic, or the shareholders of either of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) Each share of UPBNA Merger Sub Common Stock issued and
outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be converted to and exchanged for one share of
Republic Common Stock.
(b) Each share of Republic Common Stock (excluding shares
held by Republic, any Republic Subsidiary, or UPBNA Merger Sub, in each
case other than in a fiduciary capacity or as a result of debts
previously contracted) issued and outstanding immediately prior to the
Effective Time shall cease to be outstanding and shall be converted
into the right to receive from UPBNA a check in the amount of $19.25
(without interest) (the "Cash Payment Amount").
3.2 ANTI-DILUTION PROVISIONS. In the event Republic changes
the number of shares of Republic Common Stock issued and outstanding prior to
the Effective Time as a result of a stock split, stock dividend, or similar
recapitalization with respect to such stock and the record date therefor (in the
case of a stock dividend) or the effective date thereof (in the case of a stock
split or similar recapitalization for which a record date is not established)
shall be prior to the Effective Time, the Cash Payment Amount shall be
proportionately adjusted.
3.3 SHARES HELD BY REPUBLIC OR UPBNA MERGER SUB. Each of the
shares of Republic Common Stock held by Republic, any Republic Subsidiary, or
UPBNA Merger Sub, in each case other than in a fiduciary capacity or as a result
of debts previously contracted, shall be canceled and retired at the Effective
Time and no consideration shall be issued in exchange therefor.
-3-
ARTICLE 4
DELIVERY OF CONSIDERATION
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time,
UPBNA shall cause the Exchange Agent to mail to the former shareholders of
Republic appropriate transmittal materials (which shall specify that delivery
shall be effected, and risk of loss and title to the certificates theretofore
representing shares of Republic Common Stock shall pass, only upon proper
delivery of such certificates to the Exchange Agent). Republic shall have the
right to review the transmittal materials. After the Effective Time, each holder
of shares of Republic Common Stock (other than shares to be canceled pursuant to
Section 3.3 of this Plan of Merger) issued and outstanding at the Effective Time
shall surrender the certificate or certificates representing such shares to the
Exchange Agent and shall promptly upon surrender thereof receive in exchange
therefor the consideration (without interest) provided in Section 3.1 of this
Plan of Merger, together with all undelivered dividends or distributions in
respect of such shares (without interest thereon) pursuant to Section 4.2 of
this Plan of Merger. UPBNA shall not be obligated to deliver the consideration
to which any former holder of Republic Common Stock is entitled as a result of
the Merger until such holder surrenders such holder's certificate or
certificates representing the shares of Republic Common Stock for exchange as
provided in this Section 4.1. The certificate or certificates of Republic Common
Stock so surrendered shall be duly endorsed as the Exchange Agent may require.
Any other provision of this Plan of Merger notwithstanding, neither UPBNA,
Republic, nor the Exchange Agent shall be liable to a holder of Republic Common
Stock for any amounts paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property Law.
4.2 RIGHTS OF FORMER REPUBLIC SHAREHOLDERS. At the Effective
Time, the stock transfer books of Republic shall be closed as to holders of
Republic Common Stock immediately prior to the Effective Time and no transfer of
Republic Common Stock by any such holder shall thereafter be made or recognized.
Until surrendered for exchange in accordance with the provisions of Section 4.1
of this Plan of Merger, each certificate theretofore representing shares of
Republic Common Stock (other than shares to be canceled pursuant to Section 3.3
of this Plan of Merger) shall from and after the Effective Time represent for
all purposes only the right to receive the consideration (without interest)
provided in Section 3.1 of this Plan of Merger in exchange therefor, subject,
however, to the Surviving Corporation's obligation to pay any dividends or make
any other distributions with a record date prior to the Effective Time which
have been declared or made by Republic in respect of such shares of Republic
Common Stock and in accordance with the terms of this Agreement and which remain
unpaid at the Effective Time. In the event any Republic Common Stock certificate
shall have been lost, stolen, or destroyed, upon the making of an affidavit of
that fact by the person claiming such certificate to be lost, stolen, or
destroyed and, if required by UPBNA, the posting by such person of a bond in
such amount as UPBNA may reasonably direct as indemnity against any claim that
may be made against it with respect to such certificate, the Exchange Agent
shall issue in exchange for such lost, stolen, or destroyed certificate the
consideration provided in Section 3.1 of this Plan of Merger.
-4-
ARTICLE 5
MISCELLANEOUS
5.1 CONDITIONS PRECEDENT. Consummation of the Merger by UPBNA
Merger Sub shall be conditioned on the satisfaction of, or waiver by UPBNA of
the conditions precedent to the Merger set forth in Sections 9.1 and 9.2 of the
Merger Agreement. Consummation of the Merger by Republic shall be conditioned on
the satisfaction of, or waiver by Republic of, the conditions precedent to the
Merger set forth in Sections 9.1 and 9.3 of the Merger Agreement.
5.2 TERMINATION. This Plan of Merger may be terminated at any
time prior to the Effective Time by the parties hereto as provided in Article 10
of the Merger Agreement.
5.3 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original; but all of such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute this Agreement as of the date first above
written.
UPBNA MERGER SUBSIDIARY
ATTEST:
By: By:
------------------------- -------------------------------------
Its: Its:
REPUBLIC BANKING CORPORATION OF FLORIDA
ATTEST:
By: By:
------------------------- -------------------------------------
Its: Its:
-5-
EXHIBIT ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ NATIONAL BANK OF MIAMI
INTO AND WITH
UNION PLANTERS BANK, NATIONAL ASSOCIATION
Pursuant to this Plan of Merger ("Plan of Merger"), dated as
of this __ day of ___________, 1999, REPUBLIC NATIONAL BANK OF MIAMI ("Republic
Bank"), a national banking association organized and existing under the laws of
the United States, with its principal offices located at _____________, Coral
Gables, ______ County, Florida, ________, with a capital of $ _________, divided
into ________ shares of common stock, each of $_______, surplus of $_______, and
undivided profits including capital reserves of $_______, as of _______, 199_,
and a majority-owned subsidiary of REPUBLIC BANKING CORPORATION OF FLORIDA
("Republic"), a corporation organized and existing under the laws of the State
of Florida, shall be merged with and into UNION PLANTERS BANK, NATIONAL
ASSOCIATION ("UPNA"), a national banking association organized and existing
under the laws of the United States, with its principal offices located at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, with a capital
of $ _________, divided into _____ shares of common stock, each of $_______,
surplus of $_______, and undivided profits including capital reserves of
$_______, as of _______, 199_, and a wholly-owned subsidiary of UNION PLANTERS
HOLDING CORPORATION ("UPHC"), a corporation organized and existing under the
laws of the State of Tennessee.
ARTICLE 1
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
1.1 "CERTIFICATE OF MERGER" shall mean the certificate of
merger to be issued by the Office of the Comptroller of the Currency, relating
to the Merger as contemplated by Section 2.1 of this Plan of Merger.
1.2 "EFFECTIVE TIME" shall mean the date and time on which the
Merger becomes effective pursuant to the Laws of the United States as defined in
Section 2.3 of this Plan of Merger.
1.3 "EXCHANGE AGENT" shall mean the exchange agent selected by
UPBNA.
1.4 "LAW" shall have the meaning set forth in the Merger
Agreement.
1.5 "MERGER" shall mean the merger of Republic Bank into and
with UPBNA as provided in Section 2.1 of this Plan of Merger.
1.6 "MERGER AGREEMENT" shall mean the Agreement and Plan of
Reorganization, dated as of February 22, 1999, by and between Republic and
UPBNA.
1.7 "REGULATORY AUTHORITIES" shall mean, collectively, the
Federal Trade Commission, the United States Department of Justice, the Board of
the Governors of the Federal Reserve System, the Office of the Comptroller of
the Currency, the Federal Deposit Insurance Corporation, all state regulatory
agencies having jurisdiction over the Parties and their respective Subsidiaries,
the New York Stock Exchange, the National Association of Securities Dealers, and
the Securities and Exchange Commission.
1.8 "REPUBLIC BANK COMMON STOCK" shall mean the $1.25 par
value common stock of Republic Bank.
1.9 "REPUBLIC SUBSIDIARIES" shall mean the Subsidiaries of
Republic, which shall include such Subsidiaries described in Section 5.4 of the
Merger Agreement and any corporation, bank, or other organization acquired as a
Subsidiary of Republic in the future and owned by Republic at the Effective
Time.
1.10 "SUBSIDIARIES" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or controls
10% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 10% or more of the outstanding
equity securities is owned directly or indirectly by its parent; provided, there
shall not be included any such entity acquired through foreclosure or any such
entity the equity securities of which are owned or controlled in a fiduciary
capacity.
1.11 "SURVIVING BANK" shall refer to UPBNA as the surviving
bank resulting from the Merger.
1.12 "UPBNA COMMON STOCK" shall mean the $10.00 par value
common stock of UPC.
ARTICLE 2
TERMS OF MERGER
2.1 MERGER. Subject to the terms and conditions set forth in
the Merger Agreement and this Plan of Merger, at the Effective Time, Republic
Bank shall be merged with and into UPBNA in accordance with the provisions of 12
U.S.C.ss.215a-1. UPBNA shall be the Surviving Bank of the Merger and shall
continue to be governed by the Laws of the United States.
-2-
2.2 TIME AND PLACE OF CLOSING. The Closing will take place at
9:00 A.M. on the date that the Effective Time occurs (or the immediately
preceding day if the Effective Time is earlier than 9:00 A.M.), or at such other
time as UPBNA may determine. The Closing shall be held at a place determined by
UPBNA.
2.3 EFFECTIVE TIME. The Merger and the other transactions
contemplated by this Plan of Merger shall become effective on the date and at
the time specified in the Certificate of Merger reflecting the Merger issued by
the Office of the Comptroller of the Currency. Subject to the terms and
conditions hereof, unless otherwise mutually agreed upon in writing by the chief
executive officers or chief financial officers of each Party, the Parties shall
use their reasonable efforts to caus the Effective Time to occur on such date as
may be designated by UPBNA within 20 days following the last to occur of (i) the
effective date of the last required consent of any Regulatory Authority having
authority over and approving or exempting the Merger (including expiration of
any applicable waiting period in respect thereof), (ii) the date on which the
shareholders of Republic Bank approve the Merger Agreement and this Plan of
Merger and (iii) the date on which all other conditions precedent (other than
those conditions which relate to actions to be taken at the Closing) to each of
UPBNA's and Republic Bank's obligations under the Merger Agreement shall have
been satisfied or waived (to the extent waivable by UPBNA and Republic).
2.4 ARTICLES OF ASSOCIATION. The Articles of Association (the
"Articles of Association") of UPBNA in effect immediately prior to the Effective
Time shall be the Articles of Association of the Surviving Bank until otherwise
amended or repealed. A complete set of the Articles of Association are attached
hereto as Exhibit A.
2.5 BYLAWS. The Bylaws (the "Bylaws") of UPBNA in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Bank until otherwise amended or repealed.
2.6 DIRECTORS AND OFFICERS. The directors of UPBNA in office
immediately prior to the Effective Time, together with such additional persons
as may thereafter be elected, shall serve as the directors of the Surviving Bank
from and after the Effective Time in accordance with the Bylaws of the Surviving
Bank. The officers of UPBNA in office immediately prior to the Effective Time,
together with such additional persons as may thereafter be elected, shall serve
as the officers of the Surviving Bank from and after the Effective Time in
accordance with the Bylaws of the Surviving Bank. The names and addresses of
such persons are attached hereto as Exhibit B.
2.7 CAPITAL STOCK. At the Effective Time, the Surviving Bank
shall have outstanding $_____________ of common stock, consisting of ________
shares of $10.00 par value per share, all of which shall be issued to UPHC.
2.8 OFFICES AND BRANCHES. Attached hereto as Exhibit C is a
list of the addresses of the main offices and all branches, existing and
proposed, of the constituent banks.
-3-
The main office of UPBNA will remain the main office of the Surviving
Bank and no additional branches of the Surviving Bank are anticipated to be
opened.
2.9 ASSUMPTION OF RIGHTS. At the Effective Time, the separate
existence and corporate organization of Republic Bank shall be merged into and
continued in the Surviving Bank. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time and thereafter, except as
otherwise provided herein, all the rights, privileges, immunities, and
franchises, of a public as well as of a private nature, of each of UPBNA and
Republic Bank; and all property, real, personal, and mixed, and all debts due on
whatever account, and all other choses of action, and all and every other
interest of or belonging to or due to each of UPBNA and Republic Bank shall be
taken and deemed to be transferred to and vested in the Surviving Bank without
further act or deed; and the title to any real estate, or any interest therein,
vested in any of UPBNA and Republic Bank shall not revert or be in any way
impaired by reason of the Merger. All rights, franchises, and interests of both
UPBNA and Republic Bank in and to every type of property (real, personal, and
mixed), and all choses in action of both UPBNA and Republic Bank shall be
transferred to and vested in the Surviving Bank without any deed or other
transfer. The Surviving Bank, upon consummation of the Merger and without any
order or other action on the part of any court or otherwise, shall hold and
enjoy all rights of property, franchises, and interests, including appointments,
designations, and nominations, and all other rights and interests as trustee,
executor, administrator, registrar of stocks and bonds, guardian of estates,
assignee, receiver, and committee of estates of incompetent persons, and in
every other fiduciary capacity, in the same manner and to the same extent as
such rights, franchises, and interests were held or enjoyed by either UPBNA or
Republic Bank at the Effective Time.
2.10 ASSUMPTION OF LIABILITIES. All liabilities and obligations of both
UPBNA and Republic Bank of every kind and description shall be assumed by the
Surviving Bank, and the Surviving Bank shall be bound thereby in the same manner
and to the same extent that UPBNA and Republic Bank were so bound at the
Effective Time.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this
Article 3, at the Effective Time, by virtue of the Merger and without any action
on the part of UPBNA, Republic Bank, or the shareholders of any of the
foregoing, the shares of the constituent corporations shall be converted as
follows:
(a) Each share of UPBNA Common Stock issued and
outstanding immediately prior to the Effective Time shall remain issued
and outstanding from and after the Effective Time.
(b) Each share of Republic Bank Common Stock (excluding
shares held by Republic, any Republic Subsidiary, UPBNA, or any UPBNA
Subsidiary, in each case other than in a fiduciary capacity or as a
result of debts previously contracted) issued
-4-
and outstanding immediately prior to the Effective Time shall cease to
be outstanding and shall be converted into the right to receive from
UPBNA a check in the amount of $45.25 (without interest) (the "Cash
Payment Amount").
3.2 ANTI-DILUTION PROVISIONS. In the event Republic Bank
changes the number of shares of Republic Bank Common Stock issued and
outstanding prior to the Effective Time as a result of a stock split, stock
dividend, or similar recapitalization with respect to such stock and the record
date therefor (in the case of a stock dividend) or the effective date thereof
(in the case of a stock split or similar recapitalization for which a record
date is not established) shall be prior to the Effective Time, the Cash Payment
Amount shall be proportionately adjusted.
3.3 SHARES HELD BY REPUBLIC OR UPBNA. Each of the shares of
Republic Bank Common Stock held by Republic, any Republic Subsidiary, UPBNA or
any UPBNA Subsidiary, in each case other than in a fiduciary capacity or as a
result of debts previously contracted, shall be canceled and retired at the
Effective Time and no consideration shall be issued in exchange therefor.
3.4 DISSENTING SHAREHOLDERS. Any holder of shares of Republic
Bank Common Stock who perfects such holder's dissenters' rights of appraisal in
accordance with and as contemplated by 12 U.S.C. Section ss. 215a or other
applicable Law shall be entitled to receive the value of such shares in cash as
determined pursuant to such provision of Law; provided, that no such payment
shall be made to any dissenting shareholder unless and until such dissenting
shareholder has complied with the applicable provisions of 12 U.S.C. ss. 215a or
other applicable Law and surrendered to Republic Bank the certificate or
certificates representing the shares for which payment is being made. In the
event that after the Effective Time a dissenting shareholder of Republic Bank
fails to perfect, or effectively withdraws or loses, such holder's right to
appraisal and of payment for such holder's shares, UPBNA shall issue and deliver
the consideration to which such holder of shares of Republic Bank Common Stock
is entitled under this Article 3 (without interest) upon surrender by such
holder of the certificate or certificates representing shares of Republic Common
Stock held by such holder.
ARTICLE 4
DELIVERY OF CONSIDERATION
4.1 EXCHANGE PROCEDURES. Promptly after the Effective Time,
UPBNA shall cause the Exchange Agent to mail to the former shareholders of
Republic Bank appropriate transmittal materials (which shall specify that
delivery shall be effected, and risk of loss and title to the certificates
theretofore representing shares of Republic Bank Common Stock shall pass, only
upon proper delivery of such certificates to the Exchange Agent). Republic Bank
shall have the right to review the transmittal materials. After the Effective
Time, each holder of shares of Republic Bank Common Stock (other than shares to
be canceled pursuant to Section 3.3 of this Plan of Merger or as to which
dissenters' rights have been perfected as provided in Section 3.4 of this Plan
of Merger) issued and outstanding at the Effective Time shall surrender the
certificate or certificates representing such shares to the Exchange Agent and
shall promptly upon surrender
-5-
thereof receive in exchange therefor the consideration provided in Section 3.1
of this Plan of Merger, together with all undelivered dividends or distributions
in respect of such shares (without interest thereon) pursuant to Section 4.2 of
this Plan of Merger. UPBNA shall not be obligated to deliver the consideration
to which any former holder of Republic Bank Common Stock is entitled as a result
of the Merger until such holder surrenders such holder's certificate or
certificates representing the shares of Republic Bank Common Stock for exchang
as provided in this Section 4.1. The certificate or certificates of Republic
Bank Common Stock so surrendered shall be duly endorsed as the Exchange Agent
may require. Any other provision of this Plan of Merger notwithstanding, neither
UPBNA, Republic, Republic Bank, nor the Exchange Agent shall be liable to a
holder of Republic Bank Common Stock for any amounts paid or property delivered
in good faith to a public official pursuant to any applicable abandoned property
Law.
4.2 RIGHTS OF FORMER REPUBLIC BANK SHAREHOLDERS. At the
Effective Time, the stock transfer books of Republic Bank shall be closed as to
holders of Republic Bank Common Stock immediately prior to the Effective Time
and no transfer of Republic Bank Common Stock by any such holder shall
thereafter be made or recognized. Until surrendered for exchange in accordance
with the provisions of Section 4.1 of this Plan of Merger, each certificate
theretofore representing shares of Republic Bank Common Stock (other than shares
to be canceled pursuant to Section 3.3 or as to which dissenters' rights have
been perfected as provided in Section 3.4 of this Plan of Merger) shall from and
after the Effective Time represent for all purposes only the right to receive
the consideration provided in Section 3.1 of this Plan of Merger in exchange
therefor, subject, however, to the Surviving Bank's obligation to pay any
dividends or make any other distributions with a record date prior to the
Effective Time which have been declared or made by Republic Bank in respect of
such shares of Republic Bank Common Stock and in accordance with the terms of
this Plan of Merger and which remain unpaid at the Effective Time. In the event
any Republic Bank Common Stock certificate shall have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming
such certificate to be lost, stolen, or destroyed and, if required by UPBNA, the
posting by such person of a bond in such amoun as UPBNA may reasonably direct as
indemnity against any claim that may be made against it with respect to such
certificate, the Exchange Agent shall issue in exchange for such lost, stolen,
or destroyed certificate the Cash Payment Amount deliverable in respect thereof
pursuant to this Plan of Merger.
ARTICLE 5
MISCELLANEOUS
5.1 CONDITIONS PRECEDENT. Consummation of the Merger by UPBNA
shall be conditioned on the satisfaction of, or waiver by UPBNA of the
conditions precedent to the Merger set forth in Sections 9.1 and 9.2 of the
Merger Agreement. Consummation of the Merger by Republic Bank shall be
conditioned on the satisfaction of, or waiver by Republic of, the conditions
precedent to the Merger set forth in Sections 9.1 and 9.3 of the Merger
Agreement. Such conditions include the approval of the Merger Agreement and this
Plan of Merger by the shareholders of Republic Bank and the Office of the
Comptroller of the Currency. The Merger is
-6-
also contingent upon the consummation of the merger of a Subsidiary of UPBNA
with and into Republic.
5.2 TERMINATION. This Plan of Merger may be terminated at any
time prior to the Effective Time by the parties hereto as provided in Article 10
of the Merger Agreement.
5.3 COUNTERPARTS. This Plan of Merger may be executed in
counterparts, each of which shall be an original; but all of such counterparts
together shall constitute one and the same instrument.
5.4 PLAN OF LIQUIDATION. The parties hereto intend that this
Plan of Merger constitute a plan of liquidation of Republic within the meaning
of Section 332 of the Internal Revenue Code of 1986, as amended.
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IN WITNESS WHEREOF, the signatures and seals of the merging
banks as of the date first above written, each set by its president or a vice
president and attested by its cashier or __________________, pursuant to a
resolution of its board of directors, acting by a majority.
UNION PLANTERS BANK OF FLORIDA
ATTEST:
By: By:
------------------------- -----------------------------------
Its: Its:
[BANK SEAL]
REPUBLIC NATIONAL BANK OF MIAMI
ATTEST:
By: By:
------------------------- -----------------------------------
Its: Its:
[BANK SEAL]
-8-
STATE OF )
) ss:
COUNTRY OF )
On this __________ day of __________, 1999, before me, a
notary public for this state and country, personally came __________, as
__________, and __________ as __________, of __________, and each of his/her
capacity acknowledged this instrument to be the act and deed of the association
and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and year.
(Seal of Notary)
--------------------------------
Notary Public,--------------County
My commission expires-------------
STATE OF )
) ss:
COUNTRY OF )
On this __________ day of __________, 1999, before me, a
notary public for this state and country, personally came __________, as
__________, and __________ as __________, of __________, and each of his/her
capacity acknowledged this instrument to be the act and deed of the federal
savings bank and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and year.
(Seal of Notary)
-------------------------------------
Notary Public,-----------------------County
My commission expires----------------
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EXHIBIT 3
REPUBLIC BANKING CORPORATION OF FLORIDA ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
February 22, 1999
Union Planters Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
Ladies and Gentlemen:
We refer to the Agreement and Plan of Reorganization (the "Merger
Agreement") of even date herewith between Union Planters Bank, National
Association ("UPBNA") and Republic Banking Corporation of Florida ("Republic").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Merger Agreement.
In order to induce UPBNA to enter into the Merger Agreement, and in
consideration of UPBNA's undertaking of efforts in furtherance of the
transactions contemplated thereby, Republic agrees as follows:
1. REPRESENTATIONS AND WARRANTIES. Republic hereby represents and
warrants to UPBNA that Republic has all requisite corporate power and authority
to enter into this letter agreement (the "Agreement") and to perform its
obligations set forth herein. The execution, deliver and performance of this
Agreement have been duly and validly authorized by all necessary corporate
action on the part of Republic. This Agreement has been duly executed and
delivered by Republic.
2. TERMINATION FEE. (a) Unless a Nullifying Event shall have occurred
and be continuing at the time the Merger Agreement is terminated, in the event
that (i) the Merger Agreement shall have been terminated pursuant to Sections
10.1(c) (with respect to a breach by Republic), 10.1(d)(ii), or 10.1(d)(iii)
thereof, (ii) prior to or concurrently with such termination of the Merger
Agreement a First Trigger Event shall have occurred, and (iii) prior to,
concurrently with or within 12 months after such termination an Acquisition
Event (as such term is defined below) shall have occurred, Republic shall pay to
UPBNA a cash fee of $11.0 million. Such fee shall be payable in immediately
available funds on or before the second business day following the occurrence of
such Acquisition Event.
(b) As used herein, a "First Trigger Event" shall mean the occurrence
of any of the following events:
(i) Republic's Board of Directors shall have failed to approve or
recommend the Merger Agreement or the Merger, or shall have withdrawn
or modified in a manner adverse to UPBNA its approval or recommendation
of the Merger Agreement or the Merger, or shall have resolved or
publicly announced an intention to do either of the foregoing;
(ii) Republic or any Significant Subsidiary (as such term is
defined below), or the Board of Directors of Republic or a Significant
Subsidiary, shall have recommended that the shareholders of Republic
approve any Acquisition Proposal (as such term is defined below) or
shall have entered into an agreement with respect to, authorized,
approved, proposed or publicly announced its intention to enter into,
any Acquisition Proposal;
(iii) the Merger Agreement shall not have been approved at a
meeting of Republic shareholders which has been held for that purpose
prior to termination of the Merger Agreement in accordance with its
terms, if prior thereto it shall have been publicly announced that any
person (other than UPBNA or any of its Subsidiaries) shall have made,
or disclosed an intention to make, an Acquisition Proposal;
(iv) any person (together with its affiliates and associates) or
group (as such terms are used for purposes of Section 13(d) of the
Exchange Act) (other than UPBNA and its Subsidiaries or the
Shareholders, provided the Shareholders' direct or indirect percentage
ownership interest of Republic or any Significant Subsidiary does not
increase above that amount held by the Shareholders as of the date of
this Agreement) shall have acquired beneficial ownership (as such term
is used for purposes of Section 13(d) of the Exchange Act) or the right
to acquire beneficial ownership of 20% or more of the then outstanding
shares of the stock then entitled to vote generally in the election of
directors of Republic or a Significant Subsidiary; or
(v) following the making of an Acquisition Proposal, Republic shall
have intentionally breached any covenant or agreement contained in the
Merger Agreement such that UPBNA would be entitled to terminate the
Merger Agreement under Section 10(c) thereof (without regard to any
grace period provided for therein) unless such breach is promptly cured
without jeopardizing consummation of the Merger pursuant to the terms
of the Merger Agreement.
(c) As used herein, "Acquisition Event' shall mean the consummation of
any transaction described in clauses (A), (B), or (C) of the definition of
"Acquisition Proposal," except that the percentage reference contained in clause
(C) of such definition shall be 50% instead of 20%.
-2-
(d) As used herein, "Acquisition Proposal" shall mean after the date
hereof any (i) publicly announced proposal, (ii) regulatory application or
notice (whether in draft or final form), (iii) agreement or understanding, (iv)
disclosure of an intention to make a proposal,
or (v) amendment to any of the foregoing, made or filed on or after the date
hereof, in each case with respect to any of the following transactions with a
counterparty other than UPBNA or any of its Subsidiaries: (A) a merger or
consolidation, or any similar transaction, involving Republic or any Significant
Subsidiary (other than mergers, consolidations or similar transactions involving
solely Republic and/or one or more wholly owned Subsidiaries of Republic and
other than a merger or consolidation as to which the common shareholders of
Republic immediately prior thereto in the aggregate own at least 70% of the
common stock of the publicly held surviving or successor corporation (or any
publicly held ultimate parent company thereof) immediately following
consummation thereof); (B) a purchase, lease or other acquisition of all or
substantially all of the assets or deposits of Republic or any Significant
Subsidiary; or (C) a purchase or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of securities representing 20% or
more of the voting power of Republic or any Significant Subsidiary.
(e) As used herein, "Nullifying Event" shall mean the following event
occurring and continuing at a time when Republic is not in material breach of
any of its covenants or agreements contained in the Merger Agreement: UPBNA
shall be in breach of any of its covenants or agreements contained in the Merger
Agreement such that Republic shall be entitled to terminate the Merger Agreement
pursuant to Section 10(c) thereof (without regard to any grace period provided
for therein).
(f) As used herein, "Significant Subsidiary" shall mean a "significant
subsidiary," as defined in Rule 1-02 of Regulation S-X promulgated by the
Securities and Exchange Commission, of Republic.
3. To the extent that Republic is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required to be paid by Republic herein in full, it shall
immediately so notify UPBNA and thereafter deliver or cause to be delivered,
from time to time, to UPBNA, the portion of the payments required to be paid by
it herein that it is no longer prohibited from paying, within five business days
after the date on which the Republic is no longer so prohibited; provided,
however, that if Republic at any time is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required hereunder in full, it shall (i) use its reasonable
best efforts to obtain all required regulatory and legal approvals and to file
any required notices as promptly as practicable in order to make such payments,
(ii) within five days of the submission or receipt of any documents relating to
any such regulatory and legal approvals, provide parent with copies of the same,
and (iii) keep UPBNA advised of both the status of any such request for
regulatory and legal approvals, as well as any discussions with any relevant
regulatory or other third party reasonably related to the same.
-3-
4. In the event of an Acquisition Event and the payment by Republic of
the fee provided for in Section 2 hereof, UPBNA shall have the right to no
further remedy from Republic as a result of the termination of the Merger
Agreement and the consummation of an Acquisition Event.
5. Except where federal law specifically applies, this Agreement shall
be construed and interpreted according to the laws of the State of Tennessee
without regard to conflicts of laws principles thereof.
6. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7. Nothing contained herein shall be deemed to authorize Republic or
UPBNA to breach any provision of the Merger Agreement.
8. The provision of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective successors
and assigns.
-4-
Please confirm your agreement with the understanding set forth herein
by signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
REPUBLIC BANKING CORPORATION
OF FLORIDA
By
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
Accepted and agreed to as of
the date first above written:
UNION PLANTERS BANK, NATIONAL ASSOCIATION
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Operating Officer
-5-
EXHIBIT 4
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT ("Agreement") is made and entered into as
of the 22nd day of February, 1999, by and between the undersigned,
______________, a resident of _________________, and Union Planters Bank,
National Association, a national banking association organized and existing
under the laws of the United States ("UPBNA").
On even date herewith, UPBNA and Republic Banking Corporation of
Florida, a corporation organized and existing under the laws of the State of
Florida ("Republic"), have entered into an Agreement and Plan of Reorganization
(the "Merger Agreement"). The Merger Agreement generally provides for the merger
of a subsidiary of UPBNA with and into Republic (the "Merger") and the
conversion of the issued and outstanding shares of the $.01 par value common
stock of Republic ("Republic Common Stock") into the right to receive a check in
the amount of $19.25 (without interest), followed by the dissolution of Republic
(the "Republic Dissolution"). The Merger Agreement is subject to the affirmative
vote of the shareholders of Republic, the receipt of certain regulatory
approvals, and the satisfaction of other conditions.
The undersigned is a member of the Board of Directors of Republic
and is the owner of _________ shares of Republic Common Stock and has rights by
option or otherwise to acquire _________ additional shares of Republic Common
Stock (collectively, the "Shares"). In order to induce UPBNA to enter into the
Merger Agreement, the undersigned is entering into this Agreement with UPBNA to
set forth certain terms and conditions governing the actions to be taken by the
undersigned solely in the undersigned's capacity as a shareholder of Republic
with respect to the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated
by the Merger Agreement and the mutual promises and covenants contained herein,
the parties agree as follows:
1. Without the prior written consent of UPBNA, which consent shall
not be unreasonably withheld, the undersigned shall not transfer, sell, assign,
convey, or encumber any of the Shares during the term of this Agreement except
for transfers (i) by operation of law, by will, pursuant to the laws of descent
and distribution or as required by law, (ii) to UPBNA pursuant to the terms of
the Merger Agreement or (iii) where the transferee agrees in writing to be bound
by the terms of this Agreement. Without limiting the generality of the
foregoing, the undersigned shall not grant to any party any option or right to
purchase the Shares or any interest therein.
2. Except as otherwise provided in this Agreement or as required
by law, the undersigned intends to, and will, vote (or cause to be voted) all of
the Shares over which the undersigned has voting authority (other than in a
fiduciary capacity) in favor of the Merger Agreement and the Merger at any
meeting of shareholders of Republic called to vote on the Merger Agreement or
the Merger or the adjournment thereof or in any other circumstance upon which a
vote, consent, or other approval with respect to the Merger Agreement or the
Merger is sought. Further, the undersigned intends to, and will, surrender the
certificate or certificates representing the Shares over which the undersigned
has dispositive authority to UPBNA upon consummation of the Merger as described
in the Merger Agreement and hereby waives any rights of appraisal, or rights to
dissent from the Merger, that the undersigned may have.
3. Except as otherwise provided in this Agreement or as required
by law, at any meeting of shareholders of Republic or at any adjournment thereof
or any other circumstances upon which the vote, consent, or other approval of
Republic shareholders is sought, the undersigned will vote (or cause to be
voted) all of the Shares over which the undersigned has voting authority (other
than in a fiduciary capacity) (i) against any merger agreement, share exchange,
or merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, recapitalization, dissolution (other
than the Republic Dissolution), liquidation, or winding-up of or by Republic or
(ii) any amendment of Republic's Articles of Incorporation or By-laws or other
proposal or transaction involving Republic or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent, or nullify the Merger, the Republic Dissolution, the Merger
Agreement, or any of the other transactions contemplated thereby.
4. The undersigned acknowledges and agrees that UPBNA could not be
made whole by monetary damages in the event of any default by the undersigned of
the terms and conditions set forth in this Agreement. It is accordingly agreed
and understood that UPBNA, in addition to any other remedy which it may have at
law or in equity, shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and specifically to enforce the terms and provisions
hereof in any action instituted in any court of the United States or in any
state having appropriate jurisdiction.
5. Nothing in this Agreement shall limit the right of action of
the undersigned in his capacity as a director of Republic and in the exercise of
his fiduciary duties.
6. The covenants and obligations set forth in this Agreement shall
expire and be of no further force and effect on the later of (i) October 31,
1999 or (ii) the date included in Section 10.1(e) of the Merger Agreement, as it
may be amended.
-2-
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the undersigned as of the day and year first above written.
As to the undersigned, signed in the presence of:
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Name:
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(Please print or type)
UNION PLANTERS BANK, NATIONAL ASSOCIATION
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Operating Officer
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EXHIBIT 5
February 22, 1999
Republic Banking Corporation of Florida
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Ladies and Gentlemen:
We have, today, entered into an Agreement and Plan of Reorganization
(the "Agreement") between Union Planters Bank, National Association ("UPBNA")
and Republic Banking Corporation of Florida ("Republic"). This Supplemental
Letter is intended to set forth certain additional agreements and understandings
of UPBNA and Republic. Each of such parties agrees that this Supplemental Letter
is an integral part of the Agreement and is being entered into separately,
solely as an accommodation to UPBNA. All terms used herein without definition
have the same meaning as ascribed to such terms in the Agreement.
Accordingly, in consideration of the Parties having entered into the
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is further agreed that:
A. PENSION PLAN
Accrual of benefits under Republic's Pension Plan as in effect on the
date of the Agreement (the "Pension Plan") shall cease at the earliest
practicable date after the date hereof (but in no event later than the Effective
Time) in order that there be no accrual of benefits in respect of calendar year
1999, and Republic shall take such steps as are necessary or practicable to
terminate the Pension Plan as soon as practicable after the Effective Time. Only
to the extent permitted by applicable Law and only to the extent that any of the
following amendments do not cause the benefit liabilities (as defined in the
preceding sentence) to exceed the actual fair market value of Pension Plan
assets (all determined as of the date of the Pension Plan's termination),
Republic may at any time before the Effective Time take the necessary steps with
respect to the Pension Plan to permit participants and their beneficiaries to
elect to receive their accrued benefits in the form of a lump sum payment rather
than an annuity, and to adjust the formula and qualifications for determining
benefits under the Pension Plan in any manner associated with assuring that any
excess funding in such plan inures solely to the benefit of individuals who have
become participants in the Pension Plan at or prior to the Effective Time. Prior
to the Effective Time, Republic shall take such steps as are appropriate or
necessary to determine the cost of terminating the Pension Plan, including, but
not limited to, the amount needed to satisfy all "benefit liabilities" (as
defined in ERISA Section 4001(a)(16)) under the Pension Plan in the event of the
anticipated termination and any penalties or termination fees associated
therewith or in connection with the assets held therein ("Costs of
Termination"). Republic shall coordinate with the Human Resources Department of
UPBNA to ascertain, as closely as reasonably practicable, the Costs of
Termination and prior to the Effective Time, Republic shall fully reserve all
such
Costs of Termination. The reduction in the earnings of Republic which may result
from the reservation of such Costs of Termination shall not constitute a
Material Adverse Effect with respect to Republic. Upon termination of the
Republic Pension Plan, employees of Republic who are participants in such
Pension Plan will, to the extent provided under such Pension Plan and by
applicable Law, become fully vested in and eligible to receive benefits under
such Pension Plan to the extent required therein and by applicable Law. To the
extent permitted by the Pension Plan and applicable Law, Republic shall
distribute all vested accrued benefits to plan participants as soon as
reasonably practicable following the termination of the Pension Plan in the
manner required by applicable Law. Republic shall obtain a determination letter
from the Internal Revenue Service which determines that the termination of the
Pension Plan does not adversely affect its tax-qualified status. Republic shall
also obtain such other regulatory determinations regarding the termination of
the Pension Plan as may be appropriate under the circumstances. Upon the
election of any participant, any vested accrued benefit under the Pension Plan
that constitutes an "eligible rollover distribution" (as defined in Internal
Revenue Code Section 402(f)(2)(A)) may be rolled over to the Union Planters
Holding Corporation and Subsidiaries 401(k) Retirement and Savings Plan (the
"UPHC 401(k) Plan").
B. 401(K) PLAN
Notwithstanding anything to the contrary in the Agreement, as of the
Effective Time, all contributions under Republic's 401(k) Plan as in effect on
the date of the Agreement (the "401(k) Plan") shall cease, except for the
matching contribution in respect of 1999 required by the 401(k) Plan. Employees
of Republic who continue their employment with Republic after the Effective Time
shall be entitled to participate in the UPHC 401(k) Plan immediately following
the Effective Time to the ▇▇▇ extent as similarly situated employees of UPBNA.
Republic, in coordination with UPBNA's Human Resources Department, shall take
such steps as are necessary to merge Republic's 401(k) Plan with and into the
UPHC 401(k) Plan as of the Effective Time or as soon as reasonably practicable
after the Effective Time, but any delay in effectuating such merger shall not
delay Republic's employees' right to participate in the UPHC 401(k) Plan as of
the Effective Time. Prior to the Effective Time, Republic shall fully reserve
for all anticipated costs and expenses related to its 401(k) Plan and the merger
thereof into the UPHC 401(k) Plan. Republic, in coordination with UPBNA's Human
Resources Department, shall obtain such regulatory determinations regarding the
merger of its 401(k) Plan into the UPHC 401(k) Plan as may be appropriate to
ensure the qualified status of such plans and related trusts under the Internal
Revenue Code.
C. OTHER BENEFIT AND EMPLOYMENT MATTERS.
1. EMPLOYMENT AGREEMENTS. All employment agreements disclosed in
Section 5.15(i) of the Republic Disclosure Memorandum shall be assumed by UPBNA
in accordance with their terms, and UPBNA shall abide by such agreements in
accordance with their terms.
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2. SEVERANCE BENEFITS. After the Effective Time, employees of Republic
who become employees of UPBNA or a subsidiary of UPBNA and whose employment is
terminated subsequent to the Effective Time shall receive severance benefits in
accordance with UPBNA's standard policies for similarly situated employees.
3. MANAGEMENT POSITIONS. At the Effective Time, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.,
President and Chief Executive Officer of Republic, will be appointed President
of UPBNA's banking operations in Miami with responsibilities as assigned by the
Chief Executive Officer of the Florida Region of Union Planters Bank, National
Association.
D. TIMING.
Notwithstanding anything in this Supplemental Letter or in the
Agreement to the contrary, Republic may take such actions on or before the
Effective Time as are necessary or appropriate to effectuate the purposes of
this Supplemental Letter, including, but not limited to (i) the adoption and
execution of agreements and amendments relating to the plans, programs, and
agreements referenced herein, and (ii) the adoption and execution of any
amendment required by applicable Law.
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IN WITNESS WHEREOF, the Parties intending to be legally bound have
caused this Supplemental Letter to be executed.
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Operating Officer
REPUBLIC BANKING CORPORATION
OF FLORIDA
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
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