Exhibit 20.1
AGREEMENT AND PLAN OF MERGER
between
BANKUNITED FINANCIAL CORPORATION
AND
CENTRAL BANK
December 30th, 1997
TABLE OF CONTENTS
Page
ARTICLE I.........................................................................................................1
CERTAIN DEFINITIONS...............................................................................................1
1.01 Certain Definitions......................................................................................1
ARTICLE II........................................................................................................5
THE MERGER AND RELATED TRANSACTIONS...............................................................................5
2.01 Merger...................................................................................................5
2.02 Time and Place of Closing................................................................................6
2.03 Effective Time...........................................................................................6
2.04 Further Actions..........................................................................................6
ARTICLE III.......................................................................................................7
MANNER OF CONVERTING SHARES.......................................................................................7
3.01 Conversion...............................................................................................7
ARTICLE IV........................................................................................................8
EXCHANGE OF SHARES................................................................................................8
4.01 Exchange Procedures......................................................................................8
4.02 Voting and Dividends.....................................................................................9
ARTICLE V.........................................................................................................9
REPRESENTATIONS AND WARRANTIES OF CENTRAL ........................................................................9
5.01 Organization, Standing, and Authority....................................................................9
5.02 Central Capital Stock...................................................................................10
5.03 Subsidiaries............................................................................................10
5.04 Authorization of Merger and Related Transactions........................................................11
5.05 Central Financial Statements............................................................................11
5.06 Absence of Undisclosed Liabilities......................................................................12
5.07 Commitments.............................................................................................12
5.08 Tax Matters.............................................................................................12
5.09 Allowance for Loan Losses...............................................................................13
5.10 Other Tax and Regulatory Matters........................................................................13
5.11 Properties..............................................................................................13
5.12 Compliance with Laws....................................................................................14
5.13 Employee Benefit Plans..................................................................................14
5.14 Commitments and Contracts...............................................................................16
5.15 Material Contract Defaults..............................................................................16
5.16 Legal Proceedings.......................................................................................17
5.17 Absence of Certain Changes or Events....................................................................17
5.18 Reports.................................................................................................17
5.19 Statements True and Correct.............................................................................17
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5.20 Insurance...............................................................................................18
5.21 Labor...................................................................................................18
5.22 Material Interests of Certain Persons...................................................................18
5.23 Registration Obligations................................................................................18
5.24 Brokers and Finders.....................................................................................18
5.25 Takeover Laws...........................................................................................19
5.26 Environmental Matters...................................................................................19
5.27 Support of Stockholders.................................................................................19
ARTICLE VI.......................................................................................................19
REPRESENTATIONS AND WARRANTIES OF BANKUNITED.....................................................................19
6.01 Organization............................................................................................19
6.02 BankUnited Capital Stock................................................................................20
6.03 Subsidiaries............................................................................................20
6.04 Authorization of Merger and Related Transactions........................................................20
6.05 Financial Statements....................................................................................21
6.06 Securities Reporting Documents..........................................................................21
6.07 Absence of Undisclosed Liabilities......................................................................22
6.08 Absence of Certain Changes or Events....................................................................22
6.09 Compliance with Laws....................................................................................22
6.10 Allowance for Loan Losses...............................................................................23
6.11 Statements True and Correct.............................................................................23
6.12 Capital Stock...........................................................................................23
6.13 Properties..............................................................................................23
6.14 Tax and Regulatory Matters..............................................................................24
6.15 Litigation..............................................................................................24
6.16 Brokers and Finders.....................................................................................24
6.17 Material Contract Defaults..............................................................................24
6.18 Insurance...............................................................................................24
ARTICLE VII......................................................................................................25
CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME................................................................25
7.01 Conduct of Business Prior to the Effective Time.........................................................25
7.02 Forbearances of Central.................................................................................25
ARTICLE VIII.....................................................................................................27
ADDITIONAL AGREEMENTS............................................................................................27
8.01 Access and Information..................................................................................27
8.02 Registration Statement; Regulatory Matters..............................................................28
8.03 Stockholders' Approval..................................................................................28
8.04 Press Releases..........................................................................................29
8.05 Notice of Defaults......................................................................................29
8.06 Miscellaneous Agreements and Consents; Affiliates Agreements............................................29
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8.07 Indemnification of Central .............................................................................29
8.08 Certain Change of Control Matters.......................................................................30
8.09 Stock Exchange Listing..................................................................................30
8.10 Employee Benefits.......................................................................................30
8.11 Certain Actions.........................................................................................31
8.12 Acquisition Proposals...................................................................................31
8.13 Termination Fee.........................................................................................31
ARTICLE IX.......................................................................................................32
CONDITIONS.......................................................................................................32
9.01 Conditions to Each Party's Obligation to Effect the Merger..............................................32
9.02 Conditions to Obligations of Central to Effect the Merger...............................................33
9.03 Conditions to Obligations of BankUnited to Effect the Merger............................................34
ARTICLE X........................................................................................................35
TERMINATION......................................................................................................35
10.01 Termination.............................................................................................35
10.02 Intentionally Deleted...................................................................................36
10.03 Effect of Termination...................................................................................36
10.04 Survival of Representations, Warranties and Covenants Following the Effective Time......................36
ARTICLE XI.......................................................................................................36
GENERAL PROVISIONS...............................................................................................36
11.01 Expenses................................................................................................36
11.02 Entire Agreement........................................................................................36
11.03 Amendments..............................................................................................37
11.04 Waivers.................................................................................................37
11.05 No Assignment...........................................................................................37
11.06 Notices.................................................................................................37
11.07 Specific Performance....................................................................................38
11.08 Governing Law...........................................................................................38
11.09 Counterparts............................................................................................38
11.10 Captions................................................................................................38
11.11 Severability............................................................................................38
LIST OF EXHIBITS
Exhibit A Board of Directors of Surviving Corporation
Exhibit B Offices of Surviving Corporation
Exhibit C Voting Agreement Pursuant to Section 5.27
Exhibit D Rule 145 Affiliate Agreement Pursuant to Section 8.06
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of
December 30th, 1997, between BANKUNITED FINANCIAL CORPORATION ("BankUnited"),
a Florida corporation and CENTRAL BANK, a Florida chartered commercial bank
("Central").
WITNESSETH:
WHEREAS, pursuant to the terms and subject to the conditions of this
Agreement, BankUnited will acquire Central through the merger of Central with
and into BankUnited's wholly owned subsidiary, BankUnited, FSB or by such other
means as provided for herein (the "Merger"); and
WHEREAS, the respective Boards of Directors of BankUnited and Central
have resolved that the transactions described herein are in the best interests
of the parties and their respective stockholders and have approved the
transactions described herein, and
WHEREAS, BankUnited and Central desire to provide for certain
undertakings, conditions, representations, warranties and covenants in
connection with the transactions contemplated by this Agreement; and
WHEREAS, BankUnited has conducted a due diligence investigation of
Central based, in part, on the Central Disclosure Schedule;
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below. Capitalized terms not otherwise
defined herein shall have the meanings ascribed in this Article I.
(a) "Acquisition Event" shall have the meaning set forth in
Section 8.13.
(b) "Acquisition Proposal" shall have the meaning set forth in
Section 8.12.
(c) "Acquisition Transaction" shall have the meaning set forth
in Section 8.12.
(d) "Affiliate" shall mean, with respect to any Person, any
Person that, directly or indirectly, controls or is controlled by or is
under common control with such Person.
(e) "Agreement" shall have the meaning set forth in the
introduction to this Agreement.
(f) "Allowance" shall have the meaning set forth in Section
5.09.
(g) "Approvals" shall mean any and all permits, consents,
authorizations and approvals of any governmental or regulatory
authority or of any other third person necessary to give effect to the
arrangement contemplated by this Agreement or necessary to consummate
the Merger.
(h) "Authorizations" shall have the meaning set forth in
Section 5.01.
(i) "BankUnited Common Stock" shall mean the Series I Class A
Common Stock of BankUnited.
(j) "BankUnited Financial Statements" shall have the meaning
set forth in Section 6.05.
(k) "BankUnited SEC Documents" shall have the meaning set
forth in Section 6.05.
(l) "BankUnited" shall have the meaning set forth in the
introduction to this Agreement.
(m) "Central " shall have the meaning set forth in the
introduction to this Agreement.
(n) "Central Benefit Plans" shall have the meaning set forth
in Section 5.13(a).
(o) "Central Board" shall mean the Board of Directors of
Central.
(p) "Central Common Stock" shall mean the common stock, par
value $.01 per share, of Central.
(q) "Central Disclosure Schedule" shall mean that document
containing the written detailed information prepared by Central and
heretofore delivered by Central to BankUnited which appropriately
cross-references each Section of the Agreement to which that Section of
the Central Disclosure Schedule applies.
(r) "Central ERISA Plan" shall have the meaning set forth in
Section 5.13(a).
(s) "Central Financial Statements" shall have the meaning set
forth in Section 5.05.
(t) "Central's Net Worth" shall mean the net worth of Central
as determined in accordance with GAAP as at the month end prior to the
Effective Time and as adjusted for events occurring between such month
end and the Effective Time which either individually or in the
aggregate have had or immediately will have a Material Adverse Effect
on Central.
(u) "Closing Net Worth" shall mean Central's Net Worth, but
not including (i) filing fees paid to regulatory authorities or to the
SEC in connection with the approvals for the transaction, other cost of
this transaction including, without limitation, legal fees of Central,
employee severance costs, printing costs and finder's fees up to a
maximum pre-tax sum not to exceed $850,000, the estimated amounts of
which are set forth on Central Disclosure Schedule
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1.01(u); (ii) depreciation or appreciation of individual investments in
Central's investment portfolio subsequent to the date hereof.
(v) "Closing" shall have the meaning set forth in Section
2.02.
(w) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder.
(x) "Condition" shall have the meaning set forth in Section
5.01.
(y) "Current Employee" shall have the meaning set forth in
Section 8.10.
(z) "Effective Time" shall have the meaning set forth in
Section 2.03.
(aa) "Employee" shall mean any current or former employee,
officer or director, independent contractor or retiree of Central and
any dependent or spouse thereof.
(ab) "Environmental Law" shall have the meaning set forth in
Section 5.26.
(ac) "ERISA" shall have the meaning set forth in Section 5.13.
(ad) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(ae) "Exchange Agent" shall have the meaning set forth in
Section 3.01(c).
(af) "Exchange Ratio" shall have the meaning set forth in
Section 3.01(a).
(ag) "Expenses" shall have the meaning set forth in Section
8.13.
(ah) "FDIA" shall mean the Federal Deposit Insurance Act.
(ai) "FDIC" shall mean the Federal Deposit Insurance
Corporation.
(aj) "FMV" shall mean the average closing price for BankUnited
Common Stock on the NASDAQ System computed for the 20-day trading
period ending three business days prior to Closing.
(ak) "GAAP" shall mean generally accepted accounting
principles in the United States.
(al) "Hired Employees" shall have the meaning set forth in
Section 8.10.
(am) "HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended.
(an) "In the Ordinary Course" shall have the meaning set forth
in Section 7.02(a).
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(ao) "Indemnified Party" shall have the meaning set forth in
Section 8.07.
(ap) "Liens" shall have the meaning set forth in Section 5.03.
(aq) "Material Adverse Effect" shall mean any event,
occurrence or circumstance which (a) has or is reasonably likely to
have a material adverse effect on the financial condition, results of
operations, business or prospects of Central, taken as a whole, or
BankUnited and its Subsidiaries, taken as a whole, as applicable, or
(b) would materially impair such party's ability to perform its
obligations under this Agreement or the consummation of any of the
transactions contemplated hereby, provided, that Material Adverse
Effect shall not be deemed to include any effect resulting from (i)
changes in banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, (ii)
changes in GAAP or regulatory accounting principles or requirements; or
(iii) fees and expenses of counsel, accountants, and advisors, and
costs related to this Agreement.
(ar) "Merger" shall have the meaning set forth in the recitals
to this Agreement.
(as) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(at) "NASDAQ" shall mean the NASDAQ Stock Market, Inc.
(au) "OTS" shall mean the Office of Thrift Supervision.
(av) "Person" or "person" shall mean any individual,
corporation, association, partnership, group (as defined in Section
13(d)(3) of the Exchange Act), joint venture, trust or unincorporated
organization, or a government or any agency or political subdivision
thereof.
(aw) "Proxy Statement" shall have the meaning set forth in
Section 5.19.
(ax) "Registration Statement" shall have the meaning set forth
in Section 5.19.
(ay) "Regulatory Agreement" shall have the meaning set forth
in Section 5.12(b).
(az) "Regulatory Authorities" shall have the meaning set forth
in Section 5.12(b).
(ba) "Reports" shall have the meaning set forth in Section
5.18.
(bb) "SEC" shall mean the Securities and Exchange Commission.
(bc) "Securities Act" shall mean the Securities Act of 1933,
as amended.
(bd) "Securities Laws" shall have the meaning set forth in
Section 5.04(c).
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(be) "Securities Reporting Documents" shall have the meaning
set forth in Section 6.06.
(bf) "Stockholders' Meeting" shall have the meaning set forth
in Section 5.19.
(bh) "Subsidiary" shall mean, in the case of either BankUnited
or Central, any corporation, association or other entity in which it
owns or controls, directly or indirectly, 25% or more of the
outstanding voting securities or 25% or more of the total equity
interest; provided, however, that the term shall not include any such
entity in which such voting securities or equity interest is owned or
controlled in a fiduciary capacity, without sole voting power, or was
acquired in securing or collecting a debt previously contracted in good
faith.
(bg) "Surviving Corporation" shall have the meaning set forth
in Section 2.01(a).
(bh) "Tax Return" shall mean any report, return, information
return or other information required to be supplied to a taxing
authority in connection with Taxes, including, without limitation, any
return of an affiliated or combined or unitary group that includes
Central or its Subsidiaries.
(bi) "Tax" or "Taxes" shall mean all federal, state, local and
foreign taxes, charges, fees, levies, imposts, duties or other
assessments, including, without limitation, income, gross receipts,
excise, employment, sales, use, transfer, license, payroll, franchise,
severance, stamp, occupation, windfall profits, environmental, federal
highway use, commercial rent, customs duties, capital stock, paid up
capital, profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax or governmental fee of any kind whatsoever,
imposed or required to be withheld by the United States or any state,
local, foreign government or subdivision or agency thereof, including,
without limitation, any interest, penalties or additions thereto.
(bj) "Termination Fee" shall have the meaning set forth in
Section 8.13.
(bk) "Voting Power" shall mean the right to vote generally in
the election of Directors of Central through the beneficial ownership
of Central Common Stock.
ARTICLE II
THE MERGER AND RELATED TRANSACTIONS
2.01 MERGER.
(a) Subject to the terms and conditions of this Agreement, at
the Effective Time (as defined in Section 2.03 of this Agreement),
Central shall be merged with and into BankUnited's wholly owned
subsidiary, BankUnited, FSB, in accordance with the provisions of
applicable law
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and with the effect provided therein. The separate corporate existence
of Central shall thereupon cease, and BankUnited, FSB shall be the
surviving corporation in the Merger (the "Surviving Corporation").
(b) As of the Effective Time, the articles of incorporation
and the bylaws of BankUnited, FSB shall be the articles of
incorporation and the bylaws of the Surviving Corporation.
(c) The directors and officers of BankUnited, FSB immediately
prior to the Effective Time shall be the directors and officers of the
Surviving Corporation, in each case, until their respective successors
are duly elected and qualified.
(d) All assets of Central as they exist at the Effective Time
shall pass to and vest in the Surviving Corporation without any
conveyance or other transfer. The Surviving Corporation shall be
responsible and liable for all of the liabilities of every kind and
description of Central as of the Effective Time.
(e) The name of the Surviving Corporation shall be BankUnited,
FSB. The location of the home office of the Surviving Corporation shall
be ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The locations of
offices of the Surviving Corporation are set forth in Exhibit B hereto.
(f) Upon the consummation of the Merger, the savings account
holders of Central Bank shall be issued savings accounts of the
Surviving Corporation containing substantially the same terms and
conditions as those issued by Central Bank.
2.02 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") will take place at the offices of Stuzin and
Camner, P. A. in Miami, Florida at 10:00 A.M. on the date that the Effective
Time occurs, or at such other time, and at such other place, as may be mutually
agreed upon by BankUnited and Central.
2.03 EFFECTIVE TIME. The effective time of the consummation of the
Merger (the "Effective Time") shall occur on or promptly after the first
business day following the last to occur of (i) the date that is 30 days after
the date of the last order of the appropriate regulatory authorities approving
the Merger, (ii) the effective date of the last order, approval, or exemption of
any other federal or state regulatory agency approving or exempting the Merger,
if such action is required, (iii) the expiration of all required waiting periods
after the filing of all notices to all federal or state regulatory agencies
required for consummation of the Merger, and (iv) the date on which the
stockholders of Central approve this Agreement, in each case as contemplated
hereby. The Effective Time may occur at such other date and time as the parties
hereto shall agree to in writing.
2.04 FURTHER ACTIONS. To facilitate the Merger , each of the parties
will execute such additional agreements and documents and take such other
actions as BankUnited reasonably determines to be necessary or appropriate to
effect the intent of this Agreement, provided such action does not impose any
additional liabilities on Central or diminish Central's benefits under this
Agreement.
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ARTICLE III
MANNER OF CONVERTING SHARES
3.01 CONVERSION.
(a) Subject to the provisions of this Article III and of
Article I, at the Effective Time, by virtue of the Merger and without
any action on the part of the holders thereof, the shares of the
constituent corporations shall be converted as follows:
(i) Each share of capital stock of BankUnited, FSB
issued and outstanding immediately prior to the Effective Time
shall remain outstanding as one share of capital stock of the
Surviving Corporation;
(ii) Subject to adjustment as described in subsection
(b) hereof, each share of Central Common Stock issued and
outstanding immediately prior to the Effective Time shall be
converted into and become the right to receive 3.37 shares of
BankUnited Common Stock, provided, however, that
(1) if the fair market value ("FMV") of BankUnited
Common Stock is more than $14.30 per share, the Exchange Ratio
shall be computed as follows:
3.37 X (14.30 + ((FMV - 14.30) X .5))
-------------------------------------
FMV
(2) or if the FMV of BankUnited Common Stock is less
than $11.70 per share, the Exchange Ratio shall be computed as
follows:
3.37 X 11.70
------------
FMV
(3) or if the FMV of BankUnited Common Stock is less
than $9.50 per share the Exchange Ratio will be 4.15;
provided, however, that if the FMV is less than $9.50 per
share then this Agreement may be terminated in accordance with
Section 10.01(a).
FMV shall be determined by using the average closing price for
BankUnited Common Stock on the NASDAQ System computed for the 20-day trading
period ending three business days prior to the Effective Time.
(b) Notwithstanding any other provision of this Agreement,
each holder of shares of Central capital stock exchanged pursuant to
the Merger, who would otherwise have been entitled to receive a
fraction of a share of BankUnited Common Stock (after taking into
account all certificates delivered by such holder) shall receive, in
lieu thereof, cash (without interest) in an amount equal to such
fractional part of a share of BankUnited Common Stock multiplied by
FMV. No such holder will be entitled to dividends, voting rights or any
other rights as a stockholder in respect of any fractional share.
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(c) At the Effective Time, the stock transfer books of Central
shall be closed as to holders of Central capital stock immediately
prior to the Effective Time and no transfer of Central capital stock by
any such holder shall thereafter be made or recognized. If, after the
Effective Time, certificates are properly presented in accordance with
Article IV of this Agreement to the exchange agent, American Stock
Transfer and Trust Company (the "Exchange Agent"), such certificates
shall be canceled and exchanged for certificates representing the
appropriate number of shares of BankUnited Common Stock and a check
representing the amount of cash in lieu of fractional shares, if any,
into which the Central capital stock represented thereby was converted
in the Merger. Any other provision of this Agreement notwithstanding,
neither BankUnited nor the Exchange Agent shall be liable to a holder
of Central capital stock for any amount paid or property delivered in
good faith to a public official pursuant to any applicable abandoned
property, escheat, or similar law. In the event any 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 the Exchange Agent, the posting by such
person of a bond in such amount as the Exchange Agent may reasonably
direct as indemnity against any claim that may be made against it with
respect to such certificate, the Exchange Agent will issue in exchange
for such lost, stolen or destroyed certificate the BankUnited Common
Stock deliverable in respect thereof pursuant to this Agreement.
ARTICLE IV
EXCHANGE OF SHARES
4.01 EXCHANGE PROCEDURES. Promptly after the Effective Time (but in no
event more than three business days following the Effective Time), BankUnited
and Central shall cause the Exchange Agent to mail appropriate transmittal
materials (which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing shares of Central capital
stock shall pass, only upon proper delivery of such certificates to the Exchange
Agent) to the former stockholders of Central . After the Effective Time, each
holder of shares of Central capital stock issued and outstanding at the
Effective Time (other than shares to be canceled pursuant to Section 3.01(b))
shall surrender the certificate or certificates theretofore representing such
shares, together with such transmittal materials properly executed, to the
Exchange Agent and promptly upon surrender (but in no event more than three
business days following receipt by the Exchange Agent) shall receive in exchange
therefor the consideration provided in Section 3.01 of this Agreement. The
certificate or certificates for Central capital stock so surrendered shall be
duly endorsed as the Exchange Agent may require. To the extent provided by
Section 3.01 (c), each holder of shares of Central capital stock issued and
outstanding at the Effective Time also shall receive, upon surrender of the
certificate or certificates representing such shares, cash in lieu of any
fractional shares of BankUnited Common Stock to which such holder would
otherwise be entitled. BankUnited shall not be obligated to deliver the
consideration to which any former holder of Central capital stock is entitled as
a result of the Merger until such holder surrenders his certificate or
certificates representing shares of Central capital stock for exchange as
provided in this Article IV or, in the case of a certificate which has been
lost, stolen or destroyed, the Exchange Agent receives an appropriate affidavit
and/or bond as provided in Section 3.01(c). In addition, certificates
surrendered for exchange by any person constituting an "affiliate" of Central
for purposes of Rule 145(c) under the Securities Act shall not be exchanged for
certificates representing whole shares of BankUnited
8
Common Stock until BankUnited has received a written agreement from such person
as provided in Section 8.06. Certificates representing BankUnited Common Stock
issued in the Merger to any person constituting an "affiliate" of Central for
purposes of Rule 145(c) under the Securities Act shall bear the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, APPLIES. NO TRANSFER OF SUCH
SHARES SHALL BE VALID OR EFFECTIVE UNTIL THE CONDITIONS OF SUCH
RULE HAVE BEEN FULFILLED."
If any certificate for shares of BankUnited Common Stock, or any check
representing cash, is to be issued in a name other than that in which a
certificate surrendered for exchange is issued, the certificate so surrendered
shall be properly endorsed and otherwise in proper form for transfer and the
person requesting such exchange shall affix any requisite stock transfer tax
stamps to the certificate surrendered or provide funds for their purchase or
establish to the satisfaction of the Exchange Agent that such taxes are not
payable.
4.02 VOTING AND DIVIDENDS. Former stockholders of record of Central
shall be entitled to vote after the Effective Time at any meeting of BankUnited
stockholders the number of whole shares of BankUnited Common Stock into which
their respective shares of Central capital stock are converted, regardless of
whether such holders have exchanged their certificates representing Central
capital stock for certificates representing BankUnited Common Stock in
accordance with the provisions of this Agreement. Until surrendered for exchange
in accordance with the provisions of Section 4.01, each certificate theretofore
representing shares of Central capital stock shall from and after the Effective
Time represent for all purposes only the right to receive shares of BankUnited
Common Stock and cash, as set forth in this Agreement. No dividend or other
distribution payable to the holders of record of BankUnited Common Stock, at or
as of any time after the Effective Time, shall be paid to the holder of any
certificate representing shares of Central capital stock issued and outstanding
at the Effective Time until such holder physically surrenders such certificate
for exchange as provided in Section 4.01, promptly after which time all such
dividends or distributions shall be paid (without interest).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CENTRAL
Central represents and warrants to BankUnited, subject to such
exceptions and limitations as are set forth below or in the Central Disclosure
Schedule, as follows:
5.01 ORGANIZATION, STANDING, AND AUTHORITY. Central is a corporation
duly organized validly existing and in good standing under the laws of the State
of Florida. Central is duly qualified to do business and in good standing in all
jurisdictions (whether federal, state, local or foreign) where its ownership or
leasing of property or the conduct of its business requires it to be so
qualified and in which the failure to be duly qualified would have a material
adverse effect on the financial condition, results of operations or business
(the "Condition") of Central and its Subsidiaries on a consolidated basis or on
the ability of Central to consummate the transactions contemplated hereby.
Central has all
9
requisite corporate power and authority to carry on its business as now
conducted and to own, lease and operate its assets, properties and business,
except where the failure to have such power and authority would not have a
Material Adverse Effect, and to execute and deliver this Agreement and perform
the terms of this Agreement. Central has in effect all federal, state, local and
foreign governmental, regulatory and other authorizations, permits and licenses
(collectively, "Authorizations") necessary for it to own or lease its properties
and assets and to carry on its business as now conducted, the absence of which,
either individually or in the aggregate, would have a Material Adverse Effect.
5.02 CENTRAL CAPITAL STOCK.
(a) The authorized capital stock of Central consists of
900,000 shares of Common Stock. At September 30, 1997, there were
outstanding 450,000 shares of Central Common Stock. All of the issued
and outstanding shares of Central capital stock are duly and validly
issued and outstanding and are fully paid and nonassessable. None of
the outstanding shares of the Central capital stock has been issued in
violation of any preemptive rights or any provision of Central's
Articles of Incorporation. As of September 30, 1997 no other shares of
capital stock had been reserved for issuance for any purpose.
(b) Except as set forth in Section 5.02 of the Central
Disclosure Schedule, there are no shares of capital stock, or other
equity securities of Central outstanding and no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible
into or exchangeable for, shares of the capital stock of Central or
contracts, commitments, understandings or arrangements by which Central
is or may be bound to issue any equity security of Central including
any additional shares of its capital stock or options, warrants or
rights to purchase or acquire any additional shares of its capital
stock. There are no contracts, commitments, understandings or
arrangements by which Central or any of its Subsidiaries is or may be
bound to transfer any shares of the capital stock of any Subsidiary of
Central, except for a transfer to Central or any of its wholly owned
Subsidiaries and except as set forth in Section 5.02 of the Central
Disclosure Schedule, and there are no agreements, understandings or
commitments relating to the right of Central to vote or to dispose of
such shares, other than such as are held in a fiduciary capacity.
(c) Except as set forth in Section 5.02 of the Central
Disclosure Schedule, there are no securities required to be issued by
Central under any Central Stock Plan, dividend reinvestment plan or
similar plan.
5.03 SUBSIDIARIES. Section 5.03 of the Central Disclosure Schedule
contains a complete list of Central's Subsidiaries. All of the issued and
outstanding shares of each Subsidiary are owned by Central and no equity
securities are or may become required to be issued by reason of any options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of any Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Subsidiary is bound to issue
additional shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. All of the
shares of capital stock of each Subsidiary are fully paid and nonassessable and
are owned free and clear of any claim, lien, pledge or encumbrance of whatsoever
kind ("Liens"). Each Subsidiary (i) is duly organized, validly existing, and in
good standing under the
10
laws of the jurisdiction in which it is incorporated or organized, (ii) is duly
qualified to do business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and in which the
failure to be so qualified would have a Material Adverse Effect, (iii) has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted and (iv) has in effect all
Authorizations necessary for it to own or lease its properties and assets and to
carry on its business as now conducted, the absence of which Authorizations,
individually or in the aggregate, would have a Material Adverse Effect.
5.04 AUTHORIZATION OF MERGER AND RELATED TRANSACTIONS.
(a) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action in respect thereof
on the part of Central, including approval of the Merger by its Board
of Directors, subject to the approval of the stockholders of Central
with respect to the Merger to the extent required by applicable law.
This Agreement, subject to any requisite regulatory and stockholder
approval hereof with respect to the Merger, represents a valid and
legally binding obligation of Central, enforceable against Central in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and similar laws of
general applicability affecting creditors rights generally and by
general principles of equity (whether applied in a proceeding at law or
in equity).
(b) Except as set forth in Section 5.04 of the Central
Disclosure Schedule, neither the execution and delivery of this
Agreement by Central, nor the consummation by Central of the
transactions contemplated hereby nor compliance by Central with any of
the provisions hereof will (i) conflict with or result in a breach of
any provision of Central's Articles of Incorporation or bylaws or (ii)
constitute or result in a breach of any term, condition or provision
of, or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give rise to any right
of termination, cancellation or acceleration with respect to, or result
in the creation of any Lien upon, any property or assets of any of
Central or its Subsidiaries pursuant to any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation
to which any of them is a party or by which any of them or any of their
properties or assets may be subject and that would individually or in
the aggregate have a Material Adverse Effect, or (iii) subject to
receipt of the requisite approvals referred to in Section 9.01 of this
Agreement, violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Central or its Subsidiaries or any of their
properties or assets.
(c) Other than (i) in connection with complying with the
provisions of applicable state corporate and securities laws, the
Securities Act, the Exchange Act, and the rules and regulations of the
SEC or the OTS promulgated thereunder (the "Securities Laws"), and (ii)
consents, authorizations, approvals or exemptions required from the
OTS, no notice to, filing with, authorization of, exemption by, or
consent or approval of any public body or authority is necessary for
the consummation by Central of the Merger and the other transactions
contemplated in this Agreement.
5.05 CENTRAL FINANCIAL STATEMENTS. Central (i) has delivered to
BankUnited copies of the audited consolidated statements of financial condition
of Central and its Subsidiaries as of December
11
31, 1996 and 1995, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the two years in the period
ended December 31, 1996, (ii) copies of the unaudited consolidated statement of
financial condition and operations as of November 30, 1997; (iii) until the
Closing will deliver to BankUnited promptly upon the filing thereof with any
applicable regulatory authorities copies of the consolidated statements of
financial condition and related consolidated statements of operations,
stockholders' equity and cash flows included in any filing with any applicable
regulatory authorities, and (iv) until the Closing will deliver to BankUnited
within 20 days of the end of each month copies of monthly consolidated
statements of financial condition and related consolidated statements of
operations (collectively, the "Central Financial Statements"). The Central
Financial Statements (as of the dates thereof and for the periods covered
thereby) (A) are or will be in accordance with the books and records of Central
and its Subsidiaries, which are or will be complete and accurate in all material
respects and which have been or will have been maintained in accordance with
good business practices, and (B) present or will present fairly the consolidated
financial position and the consolidated results of operations, changes in
stockholders' equity and cash flows of Central and its Subsidiaries as of the
dates and for the periods indicated, in accordance with GAAP consistently
applied except as disclosed, subject in the case of interim financial statements
to normal recurring year-end adjustments and except for the absence of certain
footnote information in the unaudited statements. Central has delivered to
BankUnited (i) copies of all management letters prepared by Deloitte & Touche
LLP (and any predecessor thereto) delivered to Central since January 1, 1994 and
(ii) copies of audited balance sheets and related statements of income, changes
in stockholders' equity and cash flows for any Subsidiary of Central since
January 1, 1992 for which a separate audit has been performed.
5.06 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in the
Central Disclosure Schedule, neither Central nor any of its Subsidiaries has any
obligations or liabilities (contingent or otherwise) in the aggregate amount of
$75,000 or more, except obligations and liabilities (i) which are fully accrued
or reserved against in the consolidated balance sheet of Central and its
Subsidiaries as of December 31, 1996 included in the Central Financial
Statements or reflected in the notes thereto, or (ii) which were incurred after
December 31, 1996 in the ordinary course of business consistent with past
practice. Except as set forth in Section 5.06 of the Central Disclosure
Schedule, since December 31, 1996 neither Central nor any of its Subsidiaries
has incurred or paid any obligation or liability which would have a Material
Adverse Effect.
5.07 COMMITMENTS. Except as set forth in the Central Disclosure
Schedule, neither Central nor any of its Subsidiaries has any liability or
commitment to loan, fund or advance any money in an amount in excess of $250,000
in any single transaction with one of its customers or in aggregate transactions
in excess of $500,000 with one of its customers.
5.08 TAX MATTERS. Except as set forth in Section 5.08 of the Central
Disclosure Schedule:
(a) All Tax Returns required to be filed by or on behalf of
Central or any of its Subsidiaries have been timely filed, or requests
for extensions have been timely filed, granted and have not expired,
for periods ending on or before December 31, 1996, and all such returns
filed are complete and accurate in all material respects and all taxes
due have been timely paid.
(b) There are no audits, examinations, deficiencies or refund
litigation or matters in controversy with respect to any Taxes that
might reasonably be expected individually or in the aggregate to result
in a determination the effect of which would have a Material Adverse
Effect.
12
All Taxes due with respect to completed and settled examinations or
concluded litigation have been paid or adequately reserved for.
(c) Central has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any Tax due
that is currently in effect.
(d) In the Judgement of Central Management, adequate provision
for any Taxes due or to become due for Central and any of its
Subsidiaries for any period or periods through and including November
30, 1997, has been made and is reflected on the November 30, 1997
financial statements included in the Central Financial Statements. In
the Judgement of Central Management Estimated Tax payments have been
paid as required by statute or regulation and in amounts determined in
good faith based upon current estimates of any tax ▇▇▇▇. Deferred Taxes
of Central and its Subsidiaries have been provided for in the Central
Financial Statements in accordance with GAAP, applied on a consistent
basis.
(e) Central and its Subsidiaries have collected and withheld
all Taxes which they have been required to collect or withhold and have
timely submitted all such collected and withheld amounts to the
appropriate authorities. Central and its Subsidiaries are in compliance
with the back-up withholding and information reporting requirements
under (1) the Code, and (2) any state, local or foreign laws, and the
rules and regulations, thereunder.
(f) Neither Central nor any of its Subsidiaries has made any
payments, is obligated to make any payments, or is a party to any
contract, agreement or other arrangement that could obligate it to make
any payments that would not be deductible under Section 28OG of the
Code.
5.09 ALLOWANCE FOR LOAN LOSSES. The allowance for loan losses (the
"Allowance") shown on the consolidated statement of condition of Central and its
Subsidiaries as of December 31, 1996 included in the Central Financial
Statements and the Allowance shown on the consolidated statement of condition of
Central and its Subsidiaries, as of November 30, 1997 and the dates subsequent
to the execution of this Agreement included in the Central Financial Statements
are sufficient in accordance with GAAP. Management is unaware of any specific
changes in the financial condition of operations of any borrower, or group of
borrowers, related by ownership or collateral, which, in the aggregate, could
result in a Material Adverse Affect.
5.10 OTHER TAX AND REGULATORY MATTERS. To the best knowledge of
Central's management, neither Central nor any of its Subsidiaries has taken or
agreed to take any action or has any knowledge of any fact or circumstance that
would (i) prevent the transactions contemplated hereby, including the Merger,
from qualifying as a reorganization within the meaning of Section 368 of the
Code, or (ii) materially impede or delay receipt of any approval referred to in
Section 9.01(e).
5.11 PROPERTIES. Except as disclosed in any Reporting Document filed
since December 31, 1996 and prior to the date hereof and except for Liens
arising, in the ordinary course of business after the date hereof, Central and
its Subsidiaries have good and marketable title, free and clear of all Liens
that are material to the Condition of Central and its Subsidiaries on a
consolidated basis, to all their material properties and assets whether tangible
or intangible, real, personal or mixed, reflected in the Central Financial
Statements as being owned by Central and its Subsidiaries as of the date hereof.
All buildings, and all fixtures, equipment and other property and assets which
are material to its business
13
on a consolidated basis, held under leases or subleases by any of Central or its
Subsidiaries are held under valid instruments enforceable in accordance with
their respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
affecting creditors rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity). Substantially all of
Central's and Central's Subsidiaries' equipment in regular use has been
adequately maintained and is in good serviceable condition, reasonable wear and
tear excepted.
5.12 COMPLIANCE WITH LAWS.
(a) To the best knowledge of Central's management, except as
set forth in Section 5.12(a) of the Central Disclosure Schedule, each
of Central and its Subsidiaries is in compliance with all laws, rules,
regulations, policies, guidelines, reporting and licensing requirements
and orders applicable to its business or to its employees conducting
its business, and with its internal policies and procedures except for
failures to comply which will in the aggregate not result in a Material
Adverse Effect.
(b) Except as set forth in Section 5.12(b) of the Central
Disclosure Schedule, neither Central nor any of its Subsidiaries has
received since January 1, 1995, any notification or communication from
any agency or department of any federal, state or local government,
including, the Florida Department of Banking, the FDIC, and the staffs
thereof (collectively, the "Regulatory Authorities") (i) asserting that
any of Central or its Subsidiaries is not in substantial compliance
with any of the statutes, regulations, or ordinances which such agency,
department or Regulatory Authority enforces, or the internal policies
and procedures of such company, (ii) threatening to revoke any license,
franchise, permit or governmental authorization which is material to
the Condition of Central and its Subsidiaries on a consolidated basis,
(iii) requiring or threatening to require Central or any of its
Subsidiaries, or indicating that Central or any of its Subsidiaries may
be required, to enter into a cease and desist order, agreement or
memorandum of understanding or any other agreement restricting or
limiting or purporting to restrict or limit in any manner the
operations of Central or any of its Subsidiaries, including, without
limitation, any restriction on the payment of dividends, or (iv)
directing, restricting or limiting, or purporting to direct, restrict
or limit in any manner the operations of Central or any of its
Subsidiaries, including, without limitation, any restriction on the
payment of dividends (any such notice, communication, memorandum,
agreement or order described in this sentence herein referred to as a
"Regulatory Agreement").
(c) Neither Central nor any of its Subsidiaries has consented
to or entered into any Regulatory Agreement which remains in effect as
of the date of this Agreement.
(d) Neither Central nor any of its Subsidiaries is required by
Section 32 of FDIA to give prior notice to a federal banking agency of
the proposed addition of an individual to its board of directors or the
employment of an individual as a senior executive officer.
5.13 EMPLOYEE BENEFIT PLANS.
(a) Central has delivered to BankUnited prior to the execution
of this Agreement true and complete copies, a list of which has been
provided as Central Disclosure Schedule
14
5.13(a) (or, in the case of bonus or other incentive plans, summaries
thereof and financial data with respect thereto) of all material
pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock ownership, severance pay, vacation, sick pay,
bonus or other material incentive plans, all other material employee
programs, arrangements or agreements, whether arrived at through
collective bargaining or otherwise, all material medical, vision,
dental or other health plans, all life insurance plans and all other
material employee benefit plans or fringe benefit plans, including,
without limitation, all "employee benefit plans" as that term is
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), currently adopted by, maintained by,
sponsored in whole or in part by, or contributed to by Central or any
of its Subsidiaries or any affiliate thereof for the benefit of any
Employee or under which any Employee is eligible to participate and
under which Central or any of its Subsidiaries could have any liability
contingent or otherwise (collectively, the "Central Benefit Plans").
Any of the Central Benefit Plans which is an "employee pension benefit
plan," as that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Central ERISA Plan." Any of the Central Benefit Plans
pursuant to which Central is or may become obligated to, or obligated
to cause any of its Subsidiaries or any other Person to, issue, deliver
or sell shares of capital stock of Central or any of its Subsidiaries,
or grant, extend or enter into any option, warrant, call, right,
commitment or agreement to issue, deliver or sell shares, or any other
interest in respect of capital stock of Central or any of its
Subsidiaries, is referred to herein as a "Central Stock Plan." No
Central Benefit Plan is or has been a multiemployer plan within the
meaning of Section 3(37) of ERISA. Central has set forth in Section
5.13 of the Central Disclosure Schedule (i) a list of all of the
Central Benefit Plans, (ii) a list of Central Benefit Plans that are
Central ERISA Plans, (iii) a list of Central Benefit Plans that are
Central Stock Plans and (iv) a list of the number of shares covered by,
exercise prices for, and holders of, all stock options granted and
available for grant under the Central Stock Plans.
(b) To the best knowledge of Central's management, all Central
Benefit Plans are in compliance with the applicable terms of ERISA and
the Code and any other applicable laws, rules and regulations the
breach or violation of which could reasonably be expected to result in
a Material Adverse Effect.
(c) All liabilities under any Central Benefit Plan are fully
accrued or reserved against in the Central Financial Statements in
accordance with GAAP. No Central ERISA Plan which is a defined benefit
pension plan has any "unfunded current liability," as that term is
defined in Section 302(d)(8)(A) of ERISA, and the present 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.
(d) Neither Central nor any of its Subsidiaries has any
obligations for retiree health and life benefits under any Central
Benefit Plan or otherwise, except as set forth in the Central
Disclosure Schedule. There are no restrictions on the rights of Central
or its Subsidiaries to amend or terminate any such Central Benefit Plan
without incurring any material liability thereunder, except for such
restrictions as would not have a Material Adverse Effect.
(e) Except as set forth in the Central Disclosure Schedule,
neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby or
15
thereby will (i) result in any payment (including, without limitation,
severance, golden parachute or otherwise) becoming due to any Employees
under any Central Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Central Benefit Plan or (iii) result in any
acceleration of the time of payment or vesting of any such benefits.
5.14 COMMITMENTS AND CONTRACTS. Except as set forth in the Central
Disclosure Schedule, neither Central nor any of its Subsidiaries is a party or
subject to, or has amended or waived any rights under, any of the following
(whether written or oral, express or implied):
(a) any employment contract or understanding (including any
understandings or obligations with respect to severance or termination
pay liabilities or fringe benefits) with any Employees, including in
any such person's capacity as a consultant (other than those which are
terminable at will by Central or such Subsidiary without cost to
Central or any Subsidiary);
(b) any labor contract or agreement with any labor union;
(c) any contract not made in the usual, regular and ordinary
course of business containing non-competition covenants which limit the
ability of Central or any of its Subsidiaries to compete in any line of
business or which involve any restriction of the geographical area in
which Central or its Subsidiaries may carry on its business (other than
as may be required by law or applicable Regulatory Authorities);
(d) any real or personal property lease with annual rental
payments aggregating $5,000 or more;
(e) any employment or other contract requiring the payment of
additional amounts as "change in control" payments as a result of
transactions contemplated by this Agreement;
(f) any agreement with respect to (i) the acquisition of the
assets or stock of another financial institution or (ii) the sale of
one or more bank branches which would require additional payments by
Central after the date of this Agreement;
(g) any outstanding interest rate exchange or other derivative
contract;
(h) any commitment or contract to acquire real property, other
than by lease; or
(i) any other agreement to which Central or any of its
Subsidiaries is a party requiring payment by Central or any of its
Subsidiaries in excess of $10,000 during the remainder of the term of
such agreement, except as set forth in Section 5.14 of the Central
Disclosure Schedule.
5.15 MATERIAL CONTRACT DEFAULTS. Neither Central nor any of its
Subsidiaries is, or has received any notice or has any knowledge that any party
is in default in any respect under any contract, agreement, commitment,
arrangement, lease, insurance policy or other instrument to which Central or any
of its Subsidiaries is a party or by which Central or any of its Subsidiaries or
the assets, business or operations thereof may be bound or affected or under
which it or its respective assets, business or operations receives benefits,
except for those defaults which would not have, individually or in the
16
aggregate, a Material Adverse Effect and there has not occurred any event that
with the lapse of time or the giving of notice of both would constitute such a
default. No consent of any party to any contract to which Central or any of its
Subsidiaries is a party is required in connection with the consummation of the
transactions contemplated by this Agreement. The provisions of this Section are
not intended to apply to loans.
5.16 LEGAL PROCEEDINGS. Except as set forth in Section 5.16 of the
Central Disclosure Schedule, there are no actions, suits, proceedings or
investigations by Regulatory Authorities or any other Person instituted or
pending or, to the best knowledge of Central 's management, threatened against
Central or any of its Subsidiaries, or against any property, asset, interest or
right of any of them, that might reasonably be expected to result in a judgment
in excess of $10,000 or that might reasonably be expected to threaten or impede
the consummation of the transactions contemplated by this Agreement. Neither
Central nor any of its Subsidiaries is a party to any agreement or instrument or
is subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree, rule, regulation, code or ordinance that, individually
or in the aggregate, might reasonably be expected to have a Material Adverse
Effect or might reasonably be expected to threaten or impede the consummation of
the transactions contemplated by this Agreement.
5.17 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1996,
except as set forth in Section 5.17 of the Central Disclosure Schedule, neither
Central nor any of its Subsidiaries has (A) incurred or paid any liability or
obligation (contingent or otherwise) which individually or in the aggregate has
had or is reasonably likely to have a Material Adverse Effect, (B) suffered any
change in its Condition which individually or in the aggregate is reasonably
likely to have a Material Adverse Effect, (C) failed to operate its business
consistent in all material respects with past practice, or (D) changed any
accounting practices, except as mandated by the Financial Accounting Standards
Board.
5.18 REPORTS. Since January 1, 1993, Central and each of its
Subsidiaries have filed on a timely basis all reports and statements, together
with all amendments required to be made with respect thereto (collectively
"Reports"), that they were required to file with (i) the Florida Department of
Banking, (ii) the FDIC, and (iii) any other applicable state securities or
banking authorities (except, in the case of state securities authorities,
filings which are not material). No Reports with respect to periods beginning on
or after January 1, 1993, and until the Closing contained or will contain any
information that was false or misleading with respect to any material fact or
omitted or will omit to state any material fact necessary in order to make the
statements therein not misleading and each such Report contained or will contain
all information required to be stated therein.
5.19 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by Central for inclusion in the registration statement on Form
S-4, or other appropriate form, to be filed with the SEC by BankUnited under the
Securities Act in connection with the transactions contemplated by this
Agreement (the "Registration Statement"), or the proxy statement to be used by
Central in connection with obtaining all required approvals of its stockholders
as contemplated by this Agreement (the "Proxy Statement") will, in the case of
the Proxy Statement, when it is first mailed to the stockholders of Central
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which such statements are made, not misleading, or, in the
case of the Registration Statement, when it becomes effective, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein not misleading, or in the case
of the Proxy Statement
17
or any amendment thereof or supplement thereto, at the time of the meeting of
the stockholders of Central to be held pursuant to Section 8.03 of this
Agreement, including any adjournments thereof (the "Stockholders' Meeting"), be
false or misleading with respect to any material fact or omit to state any
material fact necessary to correct any statement or remedy any omission in any
earlier communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that Central 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. The information which is set forth in the Central Disclosure
Schedule by Central for the purposes of this Agreement is true and accurate in
all material respects.
5.20 INSURANCE. In the judgment of Central's management, Central and
each of its Subsidiaries are presently insured, and during each of the past five
calendar years has been insured, for reasonable amounts against such risks as
companies engaged in a similar business would, in accordance with good business
practice, customarily be insured. In the judgment of Central's management, the
policies of fire, theft, banker's blanket bond, liability (including directors
and officers liability insurance) and other insurance maintained with respect to
the assets or businesses of Central and its Subsidiaries provide adequate
coverage against all pending or threatened claims, and the fidelity bonds in
effect as to which any of Central or any of its Subsidiaries is a named insured
are sufficient for their purpose, except where the failure to have such coverage
would not have a Material Adverse Effect. Such policies are listed and briefly
described in Section 5.20 of the Central Disclosure Schedule.
5.21 LABOR. No material work stoppage involving Central or its
Subsidiaries is pending or, to the best knowledge of Central 's management,
threatened. Neither Central nor any of its Subsidiaries is involved in, or, to
the best knowledge of Central 's management, threatened with or affected by, any
labor or other employment related dispute, arbitration, lawsuit or
administrative proceeding which might reasonably be expected to have a Material
Adverse Effect. Employees of Central and its Subsidiaries are not represented by
any labor union, and, to the best knowledge of Central 's management, no labor
union is attempting to organize employees of Central or any of its Subsidiaries.
5.22 MATERIAL INTERESTS OF CERTAIN PERSONS. Except as set forth in the
Central Disclosure Schedule, no executive officer or director of Central, nor
any "associate" (as such term is defined in Rule 14a-1 under the Exchange Act)
of any such executive officer or director, has any material interest in any
material contract or property real or personal, tangible or intangible, used in
or pertaining to the business of Central or any of its Subsidiaries, other than
loans made by Central to any such executive officer, director or associate.
5.23 REGISTRATION OBLIGATIONS. Neither Central nor any of its
Subsidiaries is under any obligation, contingent or otherwise, presently in
effect or which will survive the Merger to register any of its securities under
the Securities Act.
5.24 BROKERS AND FINDERS. Except as set forth in Section 5.24 of the
Central Disclosure Schedule, neither Central nor any of its Subsidiaries nor any
of their respective officers, directors or employees has employed any broker or
finder or incurred any liability for any financial advisory fees, brokerage
fees, commissions or finder's fees in connection with this Agreement or the
transactions contemplated hereby.
18
5.25 TAKEOVER LAWS. If applicable, Central has taken all steps
necessary to irrevocably exempt the transactions contemplated by this Agreement
from any applicable state or federal takeover law and from any applicable
charter or contractual provision containing change of control or anti-takeover
provisions.
5.26 ENVIRONMENTAL MATTERS. To the best knowledge of Central's
management, without inquiry, except as set forth in Section 5.26 of the Central
Disclosure Schedule, neither Central, any of its Subsidiaries, nor any
properties owned or operated by Central or any of its Subsidiaries or held as
collateral by Central or any of its Subsidiaries has been or is in violation of
or liable under any Environmental Law (as hereinafter defined) and no properties
owned or leased by Central or any of its Subsidiaries or held as collateral by
Central or any of its Subsidiaries, while owned or leased by Central or any of
its Subsidiaries or while held as collateral by Central or any of its
Subsidiaries, have been or are in violation of any Environmental Law, except for
such violations or liabilities that, individually or in the aggregate, are not
reasonably likely to have a Material Adverse Effect. There are no actions, suits
or proceedings, or demands, claims, notices or investigations (including without
limitation notices, demand letters or requests for information from any
environmental agency) instituted or pending, or to the best knowledge of Central
's management, threatened relating to the liability of any properties owned,
leased or operated by Central or any of its Subsidiaries under any Environmental
Law, except for liabilities or violations that would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
"Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, code, license, permit, authorization,
approval, consent, order, judgment, decree, injunction or agreement with any
Regulatory Authority relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water vapor, surface
water, groundwater, drinking water supply, surface soil, subsurface soil, plant
and animal life or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of any substance presently listed,
defined, designated or classified as hazardous, toxic radioactive or dangerous,
or otherwise regulated, whether by type or by quantity, including any material
containing any such substance as a component.
5.27 SUPPORT OF STOCKHOLDERS. To induce BankUnited to enter into this
Agreement Central has obtained or will deliver within five (5) business days to
BankUnited letter agreements from all directors who are stockholders, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (in his fiduciary capacity) and ▇▇▇▇▇▇ ▇▇▇▇▇, M.D. to the effect that
they will vote in favor of the merger at the stockholder meeting and will
otherwise support the merger.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BANKUNITED
BankUnited represents and warrants to Central as follows:
6.01 ORGANIZATION, STANDING AND AUTHORITY. BankUnited is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida. BankUnited is duly qualified to do business and in good
standing in all jurisdictions (whether federal, state, local or foreign) where
its ownership or leasing of property or the conduct of its business requires it
to be so qualified and in which
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the failure to be duly qualified would have a Material Adverse Effect .
BankUnited has all requisite corporate power and authority to carry on its
business as now conducted and to own, lease and operate its assets, properties
and business, and to execute and deliver this Agreement and perform the terms of
this Agreement. BankUnited is duly registered as a savings and loan holding
company under the HOLA. BankUnited has all Authorizations necessary for it to
own or lease its properties and assets and to carry on its business as now
conducted, the absence of which, either individually or in the aggregate, would
have a Material Adverse Effect.
6.02 BANKUNITED CAPITAL STOCK. The authorized capital stock of
BankUnited consists of 33,000,000 shares of BankUnited common stock and
10,000,000 shares of BankUnited Preferred Stock. At September 30, 1997, there
were issued and outstanding 9,532,783 shares of BankUnited common stock and
2,175,296 shares of BankUnited Preferred Stock and no other shares of capital
stock of any class. All of the issued and outstanding shares of BankUnited
common stock and BankUnited Preferred Stock are duly and validly issued and
outstanding and are fully paid and nonassessable.
6.03 SUBSIDIARIES. Section 6.03 of the BankUnited Disclosure Schedule
contains a complete list of BankUnited's Subsidiaries. Except as disclosed in
ss. 6.03 of the BankUnited Disclosure Schedule, all of the issued and
outstanding shares of each Subsidiary are owned by BankUnited and no equity
securities are or may become required to be issued by reason of any options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of any Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Subsidiary is bound to issue
additional shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. All of the
shares of capital stock of each Subsidiary are fully paid and nonassessable and
are owned free and clear of any Liens. Each Subsidiary (i) is duly organized,
validly existing, and in good standing under the laws of the jurisdiction in
which it is incorporated or organized, (ii) is duly qualified to do business and
in good standing in all jurisdictions (whether federal, state, local or foreign)
where its ownership or leasing of property or the conduct of its business
requires it to be so qualified and in which the failure to be so qualified would
have a Material Adverse Effect on BankUnited, (iii) has all requisite corporate
power and authority to own or lease its properties and assets and to carry on
its business as now conducted and (iv) has in effect all Authorizations
necessary for it to own or lease its properties and assets and to carry on its
business as now conducted, the absence of which Authorizations, individually or
in the aggregate, would have a Material Adverse Effect on BankUnited.
6.04 AUTHORIZATION OF MERGER AND RELATED TRANSACTIONS.
(a) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action in respect thereof
on the part of BankUnited, including approval of the Merger by its
Board of Directors. Stockholder approval is not required. This
Agreement, subject to any requisite regulatory approval hereof with
respect to the Merger, represents a valid and legally binding
obligation of BankUnited, enforceable against BankUnited in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, and similar laws of
general applicability affecting creditors rights generally and by
general principles of equity (whether applied in a proceeding at law or
in equity).
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(b) Neither the execution and delivery of this Agreement by
BankUnited, nor the consummation by BankUnited of the transactions
contemplated hereby nor compliance by BankUnited with any of the
provisions hereof will (i) conflict with or result in a breach of any
provision of BankUnited's articles of incorporation or bylaws or (ii)
constitute or result in a breach of any term, condition or provision
of, or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give rise to any right
of termination, cancellation or acceleration with respect to, or result
in the creation of any Lien upon any property or assets of any of
BankUnited or its Subsidiaries pursuant to any note, bond, mortgage,
indenture, license, agreement, lease or other instrument or obligation
to which any of them is a party or by which any of them or any of their
properties or assets may be subject, and that would, in any such event,
have a Material Adverse Effect on BankUnited or the transactions
contemplated hereby or thereby or (iii) subject to receipt of the
requisite approvals referred to in Section 9.01 of this Agreement,
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to BankUnited or any of its Subsidiaries or any
of their properties or assets.
(c) Other than (i) in connection with complying with the
provisions of applicable state corporate and securities laws, the
Securities Act, the Exchange Act, and the rules and regulations of the
SEC or the OTS promulgated thereunder (the "Securities Laws"), and (ii)
consents, authorizations, approvals or exemptions required from the
OTS, no notice to, filing with, authorization of, exemption by, or
consent or approval of any public body or authority is necessary for
the consummation by Central of the Merger and the other transactions
contemplated in this Agreement.
6.05 FINANCIAL STATEMENTS. BankUnited (i) has delivered, or will
deliver promptly upon filing, to Central copies of the consolidated balance
sheets and the related consolidated statements of income, consolidated
statements of changes in shareholders' equity and consolidated statements of
cash flows (including related notes and schedules) of BankUnited and its
consolidated Subsidiaries as of and for the period ended September 30, 1997, and
for the period ended September 30, 1996 included on an annual report filed or to
be filed on Form 10-K by BankUnited pursuant to the Securities Laws (a
"BankUnited SEC Document"), and (ii) until the Closing will deliver to Central
promptly upon the filing thereof with the SEC copies of the consolidated balance
sheets and related consolidated statements of income, consolidated statements of
changes in shareholders' equity and consolidated statements of cash flows
(including related notes and schedules) included in any BankUnited SEC Documents
filed subsequent to the execution of this Agreement (clauses (i) and (ii)
collectively, the "BankUnited Financial Statements"). The BankUnited Financial
Statements (as of the dates thereof and for the periods covered thereby) (A) are
or will be in accordance with the books and records of BankUnited and its
Consolidated Subsidiaries, which are or will be complete and accurate in all
material respects and which have been or will have been maintained in accordance
with good business practices, and (B) present or will present fairly the
consolidated financial position and the consolidated results of operations,
changes in shareholders' equity and cash flows of BankUnited and its
Subsidiaries as of the dates and for the periods indicated, in accordance with
GAAP, subject in the case of interim financial statements to normal recurring
year-end adjustments and except for the absence of certain footnote information
in the unaudited statements.
6.06 SECURITIES REPORTING DOCUMENTS. Since October 1, 1992, BankUnited
and each of its Subsidiaries has filed on a timely basis all material reports,
schedules, registration statements and definitive proxy statements ("Securities
Reporting Documents"), together with all amendments required
21
to be made with respect thereto, that they were required to file with (i) the
SEC, including without limitation, all quarterly reports on Form 10-Q, annual
reports on Form 10-K, and current reports on Form 8-K, (ii) the OTS, (iii) the
FDIC, (iv) any other applicable state securities or banking authorities (except
in the case of state securities authorities, filings that were not material),
and (v) the NASD. No Securities Reporting Document of BankUnited with respect to
periods beginning on or after October 1, 1992 and until the Closing contained or
will contain any information that was false or misleading with respect to any
material fact or omitted or will omit to state any material fact necessary in
order to make the statements therein not misleading and each Securities
Reporting Document of BankUnited contained or will contain all information
required to be stated therein.
6.07 ABSENCE OF UNDISCLOSED LIABILITIES. Neither BankUnited nor any of
its Subsidiaries has any obligations or liabilities (contingent or otherwise) in
the aggregate amount of $630,000 or more, except obligations and liabilities (i)
which are fully accrued or reserved against in the consolidated balance sheet of
BankUnited and its Subsidiaries as of September 30, 1997 included in the
BankUnited Financial Statements or reflected in the notes thereto, or (ii) which
were incurred after September 30, 1997 in the ordinary course of business
consistent with past practice. Since September 30, 1997 neither BankUnited nor
any of its Subsidiaries has incurred or paid any obligation or liability which
would have a Material Adverse Effect on BankUnited.
6.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1997,
except as set forth in Section 6.08 of the BankUnited Disclosure Schedule,
neither BankUnited nor any of its Subsidiaries has (A) incurred or paid any
liability or obligation (contingent or otherwise) which individually or in the
aggregate had or is reasonably likely to have a Material Adverse Effect on
BankUnited, (B) suffered any change in its Condition which individually or in
the aggregate is reasonably likely to have a Material Adverse Effect on
BankUnited, (C) failed to operate its business consistent in all material
respects with past practice, or (D) changed any accounting practices, except as
mandated by the FASB.
6.09 COMPLIANCE WITH LAWS.
(a) Each of BankUnited and its Subsidiaries is in compliance
with all laws, rules, regulations, policies, guidelines, reporting and
licensing requirements and orders applicable to its business or to its
employees conducting its business, and with its internal policies and
procedures except for failures to comply which will in the aggregate
not result in a Material Adverse Effect on BankUnited.
(b) Neither BankUnited nor any of its Subsidiaries has
received any notification or communication from any agency or
department of any federal, state or local government, including, the
OTS, the FDIC, and the staffs thereof (collectively, the "Regulatory
Authorities") (i) asserting that any of BankUnited or its Subsidiaries
is not in substantial compliance with any of the statutes, regulations,
or ordinances which such agency, department or Regulatory Authority
enforces, or the internal policies and procedures of such company, (ii)
threatening to revoke any license, franchise, permit or governmental
authorization which is material to the Condition of BankUnited and its
Subsidiaries on a consolidated basis, (iii) requiring or threatening to
require BankUnited or any of its Subsidiaries, or indicating that
BankUnited or any of its Subsidiaries may be required to enter into a
cease and desist order, agreement or memorandum of understanding or any
other agreement restricting or limiting or purporting to restrict or
limit in any manner the operations of BankUnited or any of its
Subsidiaries, including, without limitation,
22
any restriction on the payment of dividends, or (iv) directing,
restricting or limiting, or purporting to direct, restrict or limit in
any manner the operations of BankUnited or any of its Subsidiaries,
including, without limitation, any restriction on the payment of
dividends (any such notice, communication, memorandum, agreement or
order described in this sentence herein referred to as a "BankUnited
Regulatory Agreement").
(c) Neither BankUnited nor any of its Subsidiaries has
consented to or entered into any BankUnited Regulatory Agreement or
memorandum of understanding.
(d) Neither BankUnited nor any of its Subsidiaries is required
by Section 32 of FDIA to give prior notice to a federal banking agency
of the proposed addition of an individual to its board of directors or
the employment of an individual as a senior executive officer.
6.10 ALLOWANCE FOR LOAN LOSSES. The Allowance shown on the consolidated
statement of condition of BankUnited and its Subsidiaries as of September 30,
1997 included in the BankUnited Financial Statements and the Allowance shown on
the consolidated statement of condition of BankUnited and its Subsidiaries, as
of dates subsequent to the execution of this Agreement included in the
BankUnited Financial Statements will be, in each case as of the dates thereof,
adequate to provide for losses relating to or inherent in the loan and lease
portfolios (including accrued interest receivables) of BankUnited and its
Subsidiaries; other extensions of credit (including letters of credit and
commitments to make loans or extend credit) by BankUnited and its Subsidiaries;
and the off balance sheet exposures, if any, of BankUnited and its Subsidiaries.
6.11 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by BankUnited for inclusion in the Registration Statement or the
Proxy Statement will, in the case of the Proxy Statement, when it is first
mailed to the stockholders of Central contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which such
statements are made, not misleading or, in the case of the Registration
Statement, when it becomes effective, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make the
statements therein not misleading, or in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Stockholders'
Meeting, be false or misleading with respect to any material fact or omit to
state any material fact necessary to correct any statement or remedy any
omission in any earlier communication with respect to the solicitation of any
proxy for the Stockholders' Meeting. All documents that BankUnited 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, including applicable provisions of the
Securities Laws.
6.12 CAPITAL STOCK. At the Effective Time, and upon issuance pursuant
to this Agreement the BankUnited Common Stock issued pursuant to the Merger will
be duly authorized, validly issued, fully paid and nonassessable and not subject
to preemptive rights.
6.13 PROPERTIES. Except as disclosed in any Reporting Document filed
since September 30, 1997 and prior to the date hereof and except for Liens
arising, in the ordinary course of business after the date hereof, BankUnited
and its Subsidiaries have good and marketable title, free and clear of all Liens
that are material to the Condition of BankUnited and its Subsidiaries on a
consolidated basis, to all their material properties and assets whether tangible
or intangible, real, personal or mixed, reflected in the
23
BankUnited Financial Statements as being owned by BankUnited and its
Subsidiaries as of the date hereof. All buildings, and all fixtures, equipment
and other property and assets which are material to its business on a
consolidated basis, held under leases or subleases by any of BankUnited or its
Subsidiaries are held under valid instruments enforceable in accordance with
their respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws of general applicability
affecting creditors rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity). Substantially all of
BankUnited's and BankUnited's Subsidiaries' equipment in regular use has been
adequately maintained and is in good serviceable condition, reasonable wear and
tear excepted.
6.14 TAX AND REGULATORY MATTERS. Neither BankUnited nor any of its
Subsidiaries has taken or agreed to take any action or has any knowledge of any
fact or circumstance that would prevent the transactions contemplated hereby,
including the Merger, from qualifying as a reorganization within the meaning of
Section 368 of the Code; or materially impede or delay receipt of any approval
referred to in Section 9.01.
6.15 LITIGATION. There are no judicial proceedings of any kind or
nature pending or, to the knowledge of BankUnited, threatened against BankUnited
before any court or arbitral tribunal or before or by any governmental
department, agency or instrumentality involving the validity of the BankUnited
Common Stock, the transactions contemplated by this Agreement or which would
result in a Material Adverse Effect on BankUnited.
6.16 BROKERS AND FINDERS. Neither BankUnited nor any of its
Subsidiaries nor any of their respective officers, directors or employees has
employed any broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions or finder's fees, and no broker or
finder has acted directly or indirectly for BankUnited or any of its
Subsidiaries in connection with this Agreement or the transactions contemplated
hereby.
6.17 MATERIAL CONTRACT DEFAULTS. Neither BankUnited nor any of its
Subsidiaries is, or has received any notice or has any knowledge that any party
is, in default in any respect under any contract, agreement, commitment,
arrangement, lease, insurance policy or other instrument to which BankUnited or
any of its Subsidiaries is a party or by which BankUnited or any of its
Subsidiaries or the assets, business or operations thereof may be bound or
affected or under which it or its respective assets, business or operations
receives benefits, except for those defaults which would not have, individually
or in the aggregate, a Material Adverse Effect on BankUnited; and there has not
occurred any event that with the lapse of time or the giving of notice of both
would constitute such a default. No consent of any party to any contract to
which BankUnited or any of its Subsidiaries is a party is required in connection
with the consummation of the transactions contemplated by this Agreement.
6.18 INSURANCE. BankUnited and each of its Subsidiaries are presently
insured, and during each of the past five calendar years has been insured, for
reasonable amounts against such risks as companies engaged in a similar business
would, in accordance with good business practice, customarily be insured. The
policies of fire, theft, banker's blanket bond, liability (including directors
and officers liability insurance) and other insurance maintained with respect to
the assets or businesses of BankUnited and its Subsidiaries provide adequate
coverage against all pending or threatened claims, and the fidelity bonds in
effect as to which any of BankUnited or any of its Subsidiaries is a named
insured are sufficient
24
for their purpose, except where the failure to have such coverage would not have
a Material Adverse Effect on BankUnited.
ARTICLE VII
CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME
7.01 CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE TIME. During the period
from the date of this Agreement to the Effective Time, Central shall, and shall
cause each of its Subsidiaries to, (i) conduct its business in the usual,
regular and ordinary course consistent with past practice (other than
transactions made pursuant to contracts in existence on the date hereof and
described in Sections 7.01 or 7.02 of the Central Disclosure Schedule) and (ii)
use its best efforts to maintain and preserve intact its business organization,
employees and advantageous business relationships and retain the services of its
officers and key Employees.
7.02 FORBEARANCES OF CENTRAL. Except as required by law, regulation or
Regulatory Authorities, during the period from the date of this Agreement to the
Effective Time, Central shall not, and shall not permit any of its Subsidiaries
to, without the prior written consent of BankUnited (and Central shall provide
BankUnited with prompt notice of any events referred to in this Section 7.02
occurring after the date hereof):
(a) other than in the ordinary course of business consistent
with past practice since September 30, 1994 ("In the Ordinary Course"),
incur any indebtedness for borrowed money (it being understood and
agreed that incurrence of indebtedness In the Ordinary Course shall
include, without limitation, the creation of deposit liabilities,
purchases of federal funds, sales of certificates of deposit and
entering into repurchase agreements), assume, guarantee, endorse or
otherwise as an accommodation become responsible for the obligations of
any other individual, corporation or other entity, or enter into any
commitment to loan or make any loan or advance other than In the
Ordinary Course;
(b) adjust, split, combine or reclassify any capital stock;
make, declare or pay any dividend or make any other distribution on, or
directly or indirectly redeem, purchase or otherwise acquire, any
shares of its capital stock or any securities or obligations
convertible into or exchangeable for any shares of its capital stock,
or grant any stock appreciation rights or grant any individual,
corporation or other entity any right to acquire any shares of its
capital stock; or issue any additional shares of capital stock, or any
securities or obligations convertible into or exchangeable for any
shares of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of
any of its properties or assets to any individual, corporation or other
entity, or cancel, release or assign any indebtedness to any such
person or any claims held by any such person, except in the ordinary
course of business consistent with past practice or pursuant to
contracts or agreements in force at the date of this Agreement;
(d) other than In the Ordinary Course or in connection with
contracts in existence on the date hereof and described in Section 7.02
of the Central Disclosure Schedule, make any
25
material investment either by purchase of stock or securities,
contributions to capital, property transfers, or purchase of any
property or assets of any other individual, corporation or other
entity;
(e) enter into or terminate any contract or agreement
involving annual payments in excess of $20,000 and which cannot be
terminated without penalty upon 30 days notice, or make any change in,
or extension of, any of its leases or contracts involving, annual
payments in excess of $20,000 and which cannot be terminated without
penalty upon 30 days notice;
(f) increase or modify in any manner the compensation or
fringe benefits of any of its Employees or pay any pension or
retirement allowance not required by any existing plan or agreement to
any such Employees, or become a party to, amend or commit itself to any
pension, retirement, profit-sharing or welfare benefit plan or
agreement or employment agreement with or for the benefit of any
Employee other than routine adjustments in compensation and fringe
benefits In the Ordinary Course or accelerate the vesting of any stock
options or other stock-based compensation;
(g) take any action that would prevent or impede the Merger
from qualifying as a reorganization within the meaning of Section 368
of the Code;
(h) settle any claim, action or proceeding involving the
payment of money damages in excess of $20,000, except In the Ordinary
Course;
(i) amend its articles of incorporation or its bylaws;
(j) fail to maintain any Regulatory Agreements, material
licenses and permits or to file in a timely fashion all federal, state,
local and foreign tax returns;
(k) make any capital expenditures of more than $20,000
individually or $50,000 in the aggregate;
(1) fail to maintain each Central Benefit Plan or timely make
all contributions or accruals required thereunder in accordance with
GAAP applied on a consistent basis;
(m) issue any additional shares of Central capital stock;
(n) agree to, or make any commitment to, take any of the
actions prohibited by this Section 7.02;
(o) purchase any securities other than in accordance with past
practices; or
(p) purchase or originate any loans or issue letter of credit
(excluding renewals or advances under existing credit facilities to
their customers and their affiliates consistent with past practices)
individually in an amount greater than $500,000;
26
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.01 ACCESS AND INFORMATION.
(a) During the period from the date of this Agreement through
the Effective Time:
(i) Each of Central and BankUnited shall, and shall
cause its Subsidiaries to afford the other, and their
respective accountants, counsel and other representatives,
reasonable access during normal business hours to their
respective properties, books, contracts, tax returns,
commitments and records at any time, and from time to time,
for the purpose of conducting any review or investigation
reasonably related to the Merger, and each of the parties will
cooperate fully with all such reviews and investigations. The
party seeking such access shall provide the other party with
reasonable notice of such request.
(ii) BankUnited shall provide copies of its
Securities Reporting Documents to Central and its advisors for
purposes of any review or report to its Board of Directors in
evaluating the Merger.
(b) During the period from the date of this Agreement through
the Effective Time, Central shall furnish to BankUnited (i) all Reports
referred to in Section 5.18 promptly upon the filing thereof, (ii) a
copy of each Tax Return filed by it and (iii) monthly and other interim
financial statements in the form prepared by Central for its internal
use. During this period, Central also shall notify BankUnited promptly
of any material change in the Condition of Central or any of its
Subsidiaries.
(c) During the period from the date of this Agreement through
the Effective Time BankUnited shall promptly furnish to Central (i) all
BankUnited Financial Statements referred to in Section 6.05(ii), (ii) a
copy of each Tax Return filed by it and (iii) monthly and other interim
financial statements in the form prepared by BankUnited for its
internal use. During this period BankUnited also shall notify Central
promptly of any material change in the Condition of BankUnited or any
of its Subsidiaries.
(d) Notwithstanding the foregoing provisions of this Section
8.01, no investigation by the parties hereto made heretofore or
hereafter shall affect the representations and warranties of the
parties which are contained herein and each such representation and
warranty shall survive such investigation; provided, however, that if a
party discovers information during the course of such investigation
which may affect the party's decision to proceed with the Merger, then
the party shall promptly advise the other party of its discovery and
decision whether to complete or terminate the Merger.
(e) BankUnited agrees that it will keep confidential any
information furnished to it in connection with the transactions
contemplated by this Agreement, except to the extent that such
information (i) was already known to BankUnited and was received from a
source other than Central or any of its Subsidiaries, directors,
officers, employees or agents, (ii) thereafter was
27
lawfully obtained from another source, or (iii) is required to be
disclosed by BankUnited or its agents or representatives to the SEC,
the NASD, the OTS, the FDIC or any other governmental agency or
authority, or is otherwise required to be disclosed by BankUnited or
its agents or representatives by law. BankUnited agrees not to use such
information, and to implement safeguards and procedures that are
reasonably designed to prevent such information from being used, for
any purpose other than in connection with the transactions contemplated
by this Agreement.
(f) Central shall cooperate, and shall cause its Subsidiaries,
accountants, counsel and other representatives to cooperate, with
BankUnited and its accountants, counsel and other representatives, in
connection with the preparation by BankUnited of any applications and
documents required to obtain the Approvals which cooperation shall
include providing all information, documents and appropriate
representations as may be necessary in connection therewith.
(g) From and after the date of this Agreement, each of
BankUnited and Central shall use its reasonable best efforts to satisfy
or cause to be satisfied all conditions to their respective obligations
under this Agreement. While this Agreement is in effect, neither
BankUnited nor Central shall take any actions, or omit to take any
actions, which would cause this Agreement to become unenforceable in
accordance with its terms.
(h) Central shall provide to BankUnited as part of the Central
Disclosure Schedule a list of deposits by officers, directors and
holders of five percent (5%) or more of the Central Common Stock, as of
December 22, 1997, which exceed for each such person in the aggregate
$10,000. "Officers" shall mean vice-presidents and above.
8.02 REGISTRATION STATEMENT; REGULATORY MATTERS.
(a) BankUnited shall (i) prepare and file with the SEC as soon
as is reasonably practicable the Registration Statement necessary to
register the shares of BankUnited's Common Stock to be issued pursuant
to the Merger, (ii) use its best efforts to cause the Registration
Statement to become effective, and (iii) take any action required to be
taken under any applicable state blue sky or securities laws in
connection therewith. Central and its Subsidiaries shall furnish
BankUnited with all information concerning Central, its Subsidiaries
and the holders of Central Common Stock as BankUnited may reasonably
request in connection with the foregoing.
(b) BankUnited and Central shall cooperate and use their
respective best efforts (i) to prepare all documentation, to effect all
filings and to obtain all permits, consents, approvals and
authorizations of all third parties, Regulatory Authorities and other
governmental authorities necessary to consummate the transactions
contemplated by this Agreement, including, without limitation, any such
approvals or authorizations required by the OTS and (ii) to cause the
Merger to be consummated as expeditiously as reasonably practicable.
8.03 STOCKHOLDERS' APPROVAL. Central shall call a meeting of its
stockholders to be held as soon as practicable for the purpose of voting upon
the Merger and related matters. The Board of Directors of Central shall submit
for approval of its stockholders the matters to be voted upon at the
Stockholders' Meeting, and shall recommend approval of such matters and use its
best efforts (including,
28
without limitation, soliciting proxies for such approvals) to obtain such
stockholder approval. The covenants under this Section 8.03 are subject to the
exercise by the Board of Directors of its fiduciary obligations.
8.04 PRESS RELEASES. Prior to the public dissemination of any press
release or other public disclosure of information about this Agreement, the
Merger or any other transaction contemplated hereby, the parties to this
Agreement shall mutually agree as to the form and substance of such release or
disclosure.
8.05 NOTICE OF DEFAULTS. Central and BankUnited shall each promptly
notify the other of (i) any material change in its business, operations or
prospects, (ii) any complaints, investigations or hearings (or communications
indicating that the same may be contemplated) of any Regulatory Authority, (iii)
the institution or the threat of material litigation involving such party, or
(iv) any event or condition that might be reasonably expected to cause any of
its representations, warranties or covenants set forth herein not to be true and
correct in all material respects as of the Effective Time.
8.06 MISCELLANEOUS AGREEMENTS AND CONSENTS; AFFILIATES AGREEMENTS.
Subject to the terms and conditions of this Agreement, each of the parties
hereto agrees to use its respective best efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement as expeditiously as reasonably
practicable, including, without limitation, using their respective best efforts
to lift or rescind any injunction or restraining order or other order adversely
affecting the ability of the parties to consummate the transactions contemplated
hereby. BankUnited and Central shall use their best efforts to obtain consents
of all third parties and Regulatory Authorities necessary or, in the reasonable
opinion of BankUnited or Central, desirable for the consummation of the
transactions contemplated by this Agreement. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of BankUnited
shall be deemed to have been granted authority in the name of Central to take
all such necessary or desirable action.
Without limiting the foregoing, Central will, at the request of
BankUnited, take such actions, or forbear from taking such actions, as may be
reasonably necessary to identify each of its "affiliates" for purposes of Rule
145 under the Securities Act and to cause each person so identified to deliver
to BankUnited within 10 days after the execution of this Agreement a written
agreement in the form attached hereto as Exhibit D providing that such person
shall not sell, pledge, transfer or otherwise dispose of any capital stock to be
received by such person as part of the BankUnited Common Stock received in
exchange for Central capital stock, except in compliance with the applicable
provisions of the Securities Act.
8.07 INDEMNIFICATION OF CENTRAL . For three years after the Effective
Time, BankUnited shall indemnify, defend and hold harmless the present and
former officers, directors, employees and agents of Central and its Subsidiaries
(each, an "Indemnified Party") after the Effective Time against all losses,
expenses, claims, judgments, fines, damages or liabilities arising out of any
claim, action, suit, proceedings or investigations arising out of any actions or
omissions occurring on or prior to the Effective Time to the full extent then
permitted under Florida law.
29
At or prior to the Effective Time, BankUnited shall purchase $1 million
of directors and officers liability insurance coverage for the Indemnified
Parties with respect to costs that may be incurred by the Indemnified Parties,
which coverage shall be for a term of three years commencing at the Effective
Time and shall have a deductible of $50,000; provided, however, that in no event
shall BankUnited expend in order to obtain such insurance, an amount in excess
of a total of $15,000 in premiums (the "Maximum Amount") for coverage for such
three year period. If the amount of the total premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Amount, BankUnited shall use
its reasonable best efforts to maintain the most advantageous policies (in terms
of coverage) of directors and officers insurance for a total three year premium
equal to the Maximum Amount.
If BankUnited or any of its successors or assigns (i) shall consolidate
with or merge into any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) shall transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provision shall be made so that the successors and assigns of the BankUnited
shall assume the obligations set forth in this Section 8.07.
8.08 CERTAIN CHANGE OF CONTROL MATTERS. From and after the date hereof,
Central shall take all action necessary so that the execution and delivery of
this Agreement will not increase any benefits otherwise payable under any
Central Benefit Plan.
8.09 STOCK EXCHANGE LISTING. BankUnited shall use its best efforts to
list, prior to the Effective Time, on the NASDAQ, upon official notice of
issuance, the shares of BankUnited Common Stock to be issued to holders of
Central capital stock in the Merger.
8.10 EMPLOYEE BENEFITS.
(a) Central shall provide BankUnited in Section 8.10 of the
Central Disclosure Schedule the names of all Central Employees
(including full and part-time employees) as of the date of the Central
Disclosure Schedule (the "Current Employees"), and, as to each Current
Employee, such Current Employee's date of hire, current compensation,
and current severance benefits.
(b) BankUnited and Central agree as follows:
(i) BankUnited shall offer, where possible,
employment to the employees of Central and its subsidiary following the
Effective Time. As soon as reasonably practicable after the date of
this Agreement BankUnited and Central shall consult with each other in
order for BankUnited in its sole discretion to determine which
employees of Central will become employees of BankUnited after the
Effective Time.
(ii) All employees of Central and their dependents,
who are enrolled in a group health plan made available by Central, who
would lose coverage in the event such employee's employment is
terminated by Central or BankUnited in connection with the Merger,
shall be eligible for group health coverage, consistent with the
requirements of the Consolidated Omnibus Budget Reconciliation Act
("COBRA") requirements of the Internal Revenue Code and ERISA, as in
effect on the date of such termination, for the applicable period set
forth in the Internal Revenue Code. BankUnited agrees that any
pre-existing condition, limitation or exclusion in its health plan
shall not apply to Hired Employees (as hereinafter defined) or their
30
covered dependents who are covered under a group health plan maintained
by Central and who then change that coverage to the group health plan
coverage offered by BankUnited at the time that such Continuing
Employees are first given the option to enroll in BankUnited's group
health plan.
(iii) All employees who accept employment with
BankUnited as of the Effective Time ("Hired Employees") shall be
eligible to participate in the employee benefit plans and other fringe
benefits of BankUnited, including sickness benefit days and vacation
days, on the same terms and conditions as those provided from time to
time by BankUnited to its similarly situated officers and employees,
giving effect, for eligibility and vesting of benefits, to years of
service with Central as if such service were with BankUnited.
(iv) All employees who are not offered employment by
BankUnited shall be entitled to receive payment in lieu of accrued vacation and
sick days, consistent with Central past practice and policy.
8.11 CERTAIN ACTIONS. No party shall take any action which would
adversely affect or delay the ability of either BankUnited or Central to obtain
any necessary approvals of any Regulatory Authority or other governmental
authority required for the transactions contemplated hereby or to perform its
covenants and agreements under this Agreement. No party shall take any action
that would prevent or impede the Merger from qualifying as a reorganization
within the meaning of Section 368 of the Code.
8.12 ACQUISITION PROPOSALS. Central shall not, and shall use its best
efforts to cause its officers, directors and employees and any investment
banker, attorney, accountant, or other agent retained by it or its Subsidiaries
not to (i) initiate, encourage or solicit, directly or indirectly, the making of
any proposal or offer (an "Acquisition Proposal") to acquire all or any
significant part of the business and properties or capital stock of Central or
its Subsidiaries, whether by merger, purchase of securities or assets, tender
offer or otherwise (an "Acquisition Transaction"), or initiate, directly or
indirectly, any contact with any person in an effort to or with a view towards
soliciting any Acquisition Proposal or (ii) participate in any discussions or
negotiations regarding, or furnish to any other person any information with
respect to, an Acquisition Proposal. Notwithstanding the foregoing, Central may
(i) furnish or cause to be furnished information subject to a confidentiality
agreement in a form satisfactory to BankUnited, (ii) in response to an
Acquisition Proposal, issue a communication to its security holders of the type
contemplated by Rule 14d-9(e) under the Exchange Act, and (iii) participate in
discussions and negotiations directly and through its representatives with
persons who have sought the same if, in each instance the Central Board
determines, based as to legal matters on the written advice of outside legal
counsel, that the failure to furnish such information or to negotiate with such
entity or group or to take and disclose such position would be inconsistent with
the proper exercise of the fiduciary duties of the Central Board. In the event
Central receives an Acquisition Proposal or such discussions are sought to be
initiated or continued with Central, it shall promptly inform BankUnited as to
the material terms thereof.
8.13 TERMINATION FEE. To compensate BankUnited for entering into this
Agreement, taking action to consummate the transactions hereunder and incurring
the costs and expenses related thereto and other losses and expenses, including
the foregoing by BankUnited of other opportunities, Central and BankUnited agree
as follows:
31
(a) Provided that BankUnited shall not be in material breach
of its obligations under this Agreement (which breach has not been
cured promptly following receipt of written notice thereof by Central
specifying in reasonable detail the basis of such alleged breach),
Central shall pay to BankUnited the sum of $550,000 (the "Termination
Fee") plus reasonable out-of-pocket expenses, not in excess of $35,000
(including, without limitation, amounts paid or payable to banks and
investment bankers, fees and expenses of counsel and printing expenses)
(such expenses are hereinafter referred to as the "Expenses") incurred
by BankUnited or any of its affiliates in connection with or arising
out of transactions contemplated by this Agreement, regardless of when
those expenses are incurred, if this Agreement is terminated (i) by
BankUnited under the provisions of Section 10.01(d) and an Acquisition
Event shall occur within nine (9) months from the date the Agreement is
terminated, or (ii) by Central under the provisions of Section
10.01(g). BankUnited shall provide Central with an itemization of
Expenses. If BankUnited is entitled to the Termination Fee and recovery
of Expenses, the recovery of such sums shall be its sole remedy.
"Acquisition Event" shall mean any of the following: (i) any
person or group (as defined in Section 13(d)(3) of the Exchange Act),
other than BankUnited or any person or group who as of the date hereof
own 25% or less of any class of equity securities, shall have acquired,
pursuant to a tender offer, exchange offer or otherwise, beneficial
ownership (including pursuant to the acquisition of options) of 50 % or
more of any class of equity securities of Central; or (ii) any such
person or group shall have received approval from the OTS to acquire
ownership of 50 % or more of any class of equity securities of Central
and (iii) the equivalent total consideration paid for whatever purpose
to Central's selling shareholders on a pro rata basis, based on the
number of shares sold or acquired, as the case may be, would exceed an
amount equal to $19,714,499 if the pro rate consideration received or
to be paid per share is multiplied by 450,000.
(b) Any payment required by paragraph (a) of this Section
shall become payable within ten business days after termination of the
Agreement.
(c) Central acknowledges that the agreements contained in this
Section 8.13 are an integral part of the transactions contemplated in
this Agreement, and that without these agreements, BankUnited would not
enter into this Agreement; accordingly, if Central fails to promptly
pay the Termination Fee or Expenses when due, Central shall in addition
thereto pay to BankUnited all costs and expenses (including fees and
disbursements of counsel) incurred in collecting such Termination Fee
or Expenses, as the case may be, together with interest on the amount
of the Termination Fee or Expenses (or any unpaid portion thereof) from
the date such payment was required to be made until the date such
payment is received by BankUnited at the prime rate as in effect from
time to time during such period.
ARTICLE IX
CONDITIONS
9.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each of BankUnited and Central to effect the Merger
and the other transactions
32
contemplated hereby shall be subject to the fulfillment or waiver at or prior to
the Effective Time of the following conditions:
(a) The stockholders of Central shall have approved all
matters relating to the Merger required under applicable law at the
Stockholders' Meeting.
(b) This Agreement, the Merger, and the other transactions
contemplated hereby shall have been approved by the OTS and any other
Regulatory Authorities whose approval is required for consummation of
the transactions contemplated hereby, which approvals are subject to no
conditions that in the reasonable judgment of BankUnited would unduly
restrict it or its Subsidiaries or affiliates in their respective
spheres of operations and business activities after the Effective Time.
(c) The Registration Statement shall have been declared
effective and shall not be subject to a stop order or any threatened
stop order.
(d) Neither BankUnited nor Central shall be subject to any
active litigation which seeks any order, decree or injunction of a
court or agency of competent jurisdiction to enjoin or prohibit the
consummation of the Merger and there shall be in effect no order,
decree, or injunction of any court or agency of competent jurisdiction,
directing that the consummation of the transactions contemplated by
this Agreement be prohibited or enjoined.
(e) The shares of BankUnited Common Stock issuable pursuant to
the Merger shall have been authorized for trading on the NASDAQ upon
official notice of issuance.
(f) Holders of no more than ten percent of the outstanding
capital stock of Central shall have exercised dissenters' rights under
Florida law.
(g) Central and BankUnited shall have received an opinion of
Counsel to BankUnited addressed to Central and BankUnited in form
reasonably satisfactory to each of them, that for federal income tax
purposes, the Merger will qualify as a reorganization under the
provisions of Section 368 of the Code.
9.02 CONDITIONS TO OBLIGATIONS OF CENTRAL TO EFFECT THE MERGER. The
obligations of Central to effect the Merger shall be subject to the fulfillment
or waiver at or prior to the Effective Time of the following additional
conditions:
(a) The Board of Directors of Central shall have approved this
Agreement, the Merger and all matters related to the Merger.
(b) The representations and warranties of BankUnited set forth
in Article VI hereof shall be true and correct in all material respects
as of the date of this Agreement and as of the Effective Time (as
though made on and as of the Effective Time except to the extent such
representations and warranties are by their express provisions made as
of a specified date) and
33
Central shall have received a certificate signed by the chairman and
chief executive officer, executive vice president or other duly
authorized officer of BankUnited to that effect.
(c) BankUnited shall have performed in all material respects
all obligations required to be performed by it under this Agreement
prior to the Effective Time, and Central shall have received a
certificate signed by the chairman and chief executive officer,
executive vice president or other duly authorized officer of BankUnited
to that effect.
(d) No event, occurrence, or circumstance shall have occurred
that would constitute a Material Adverse Effect as to BankUnited.
9.03 CONDITIONS TO OBLIGATIONS OF BANKUNITED TO EFFECT THE MERGER. The
obligations of BankUnited to effect the Merger shall be subject to the
fulfillment or waiver at or prior to the Effective Time of the following
additional conditions:
(a) The Board of Directors of BankUnited shall have approved
this Agreement, the Merger and all matters related to the Merger,
including the issuance of the BankUnited Common Stock.
(b) The representations and warranties of Central set forth in
Article V hereof shall be true and correct in all material respects as
of the date of this Agreement as of the Effective Time (as though made
on and as of the Effective Time except to the extent such
representations and warranties are by their express provisions made as
of a specified date) and BankUnited shall have received a certificate
signed by the chairman or the chief executive officer or other duly
authorized officer of Central to that effect.
(c) Central shall have performed in all material respects all
obligations required to be performed by it under this Agreement prior
to the Effective Time, and BankUnited shall have received a certificate
signed by the chairman or the chief executive officer or other duly
authorized officer of Central to that effect.
(d) BankUnited shall have received an opinion of counsel for
Central addressed to BankUnited and in form reasonably satisfactory to
it as to the validity of the approvals of the Merger by the directors
and stockholders of Central .
(e) No event, occurrence, or circumstance shall have occurred
that would constitute a Material Adverse Effect as to Central.
(f) As of the Effective Time the Closing Net Worth shall not
be less than $10,000,000.
34
ARTICLE X
TERMINATION
10.01 TERMINATION. Notwithstanding any other provision of this
Agreement, and notwithstanding the approval of this Agreement, the Merger and
the other transactions contemplated hereby by the stockholders of BankUnited and
Central or both, this Agreement may be terminated and the Merger abandoned at
any time prior to the Effective Time:
(a) by Central if the FMV of BankUnited Common Stock is less
than $9.50 per share, or by either party if the FMV of BankUnited
Common Stock is less than $9 per share; or
(b) by mutual consent of the Board of Directors of BankUnited
and the Board of Directors of Central; or
(c) by the Board of Directors of BankUnited or the Board of
Directors of Central if (i) the OTS has denied approval of the Merger
and such denial has become final and nonappealable or has approved the
Merger subject to conditions that in the reasonable judgment of
BankUnited would unduly restrict it or its subsidiaries or affiliates
in their respective spheres of operations and business activities after
the Effective Time or (ii) the Effective Time does not occur by June
30, 1998, unless said time is extended by written agreement of Central
and BankUnited; or
(d) by BankUnited (if it is not in material breach of any of
its obligations hereunder) pursuant to notice in the event of a breach
or failure by Central that has a Material Adverse Effect in the context
of the transactions contemplated hereby of any representation,
warranty, covenant or agreement by Central contained herein which has
not been, or cannot be, cured within 30 days after written notice of
such breach is given to Central; provided, however, that except for
warranties and representations set forth in Sections 5.01, 5.02, 5.03,
5.04(a) and 5.27 hereof, BankUnited may not terminate this Agreement on
account of a breach of a warranty or representation made by Central in
this Agreement, unless such breach (i) arises out of an event which
occurs subsequent to December 22, 1997 or (ii) arises out of an event
or state of facts which occurred or existed prior to the date hereof
and which was not discovered during BankUnited's due diligence
investigation of Central, which in the case of either (i) or (ii)
hereof (x) constitutes or causes a material breach of a warranty and
representation made by Central in this Agreement and (y) has a Material
Adverse Effect; or
(e) by Central (if it is not in material breach of any of its
obligations hereunder) pursuant to notice in the event of a breach or
failure by BankUnited that is material in the context of the
transactions contemplated hereby of any representation, warranty,
covenant or agreement by BankUnited contained herein which has not
been, or cannot be, cured within 30 days after written notice of such
breach is given to BankUnited; or
(f) by either party if the stockholders of Central fail to
approve the Merger at the Stockholder's Meeting; or
35
(g) by Central if (i) there shall not have been a material
breach of any covenant or agreement on the part of Central under this
Agreement and (ii) prior to the Effective Time, a corporation,
partnership, person or other entity or group shall have made a bona
fide Acquisition Proposal that the Central Board determines in its good
faith judgment and in the exercise of its fiduciary duties, based as to
legal matters on the reasonable advice of legal counsel and as to
financial matters on the reasonable advice of an investment banking
firm of national reputation, is more favorable to the Central
stockholders than the Merger and that the failure to terminate this
Agreement and accept such alternative Acquisition Proposal would be
inconsistent with the proper exercise of such fiduciary duties;
provided, however, that termination under this clause (ii) shall not be
deemed effective until payment of the Termination Fee required by
Section 8.13.
(h) by BankUnited if the Closing Net Worth is less than
$10,000,000.
10.02 INTENTIONALLY DELETED
10.03 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.01, this Agreement shall
become void and have no effect, except that (i) the provisions of Section
8.01(e), 8.13, 10.03 and Section 11.01 shall survive any such termination and
abandonment, and (ii) no party shall be relieved or released from any liability
arising out of an intentional breach of any provision of this Agreement.
10.04 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS FOLLOWING
THE EFFECTIVE TIME. The parties hereto agree that none of the respective
representations, warranties, obligations, covenants and agreements of the
parties contained in this Agreement except for Sections 3.01(c), 4.01, 8.01(e)
and 8.13 or in any certificate, document or instrument delivered in connection
herewith, shall survive the Effective Time, regardless of any investigation made
by the parties hereto.
ARTICLE XI
GENERAL PROVISIONS
11.01 EXPENSES. Unless otherwise agreed by the parties in writing, each
party hereto shall bear its own expenses incident to preparing, entering into
and carrying out this Agreement and to consummating the Merger, except that
BankUnited and Central shall divide equally all printing expenses and filing
fees incurred in connection with this Agreement, the Registration Statement and
the Proxy Statement. In no event shall Central's share exceed $35,000.00.
11.02 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement contains the entire agreement between the parties hereto with
respect to the transactions contemplated hereunder and thereunder, and such
agreements supersede all prior arrangements or understandings with respect
thereto, written or oral. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors. Other than as expressly set forth in this Agreement, nothing in this
Agreement, expressed or implied, is intended to confer upon any
36
individual, corporation or other entity, other than BankUnited, Central and the
Surviving Corporation, or their respective successors, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
11.03 AMENDMENTS. To the extent permitted by law, this Agreement may be
amended by a subsequent writing signed by each of BankUnited and Central ;
provided, however, that the provisions hereof relating to the manner or basis in
which shares of Central capital stock will be exchanged for the BankUnited
Common Stock shall not be amended after the Stockholders' Meeting without any
requisite approval of the holders of the issued and outstanding shares of
Central capital stock entitled to vote thereon.
11.04 WAIVERS. Prior to or at the Effective Time, each of BankUnited
and Central shall have the right to waive any default in the performance of any
term of this Agreement by the other, to waive or extend the time for the
compliance or fulfillment by the other of any and all of the other's obligations
under this Agreement and to waive any or all of the conditions precedent to its
obligations under this Agreement, except any condition which, if not satisfied,
would result in the violation of any law or applicable governmental regulation.
11.05 NO ASSIGNMENT. None of the parties hereto may assign any of its
rights or delegate any of its obligations under this Agreement to any other
person or entity. Any such purported assignment or delegation that is made
without the prior written consent of the other parties to this Agreement shall
be void and of no effect.
11.06 NOTICES. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
overnight delivery service or by registered or certified mail, postage prepaid
to the persons at the addresses set forth below (or at such other address as may
be provided hereunder), and shall be deemed to have been delivered as of the
date so delivered:
Central : Central Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
Copy to Counsel: Greenberg, Traurig, et. al.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
BankUnited: BankUnited Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman of the Board and President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President and
Chief Financial Officer
37
Copy to Counsel: Stuzin and Camner, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
11.07 SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree
that the failure of either party to fulfill any of its covenants and agreements
hereunder, including the failure to take all such actions as are necessary on
its part to cause the consummation of the Merger, will cause irreparable injury
for which damages, even if available, will not be an adequate remedy.
Accordingly, except where a Termination Fee has been tendered as provided in
Section 8.13 , each party hereby consents to the issuance of injunctive relief
by any court of competent jurisdiction to compel performance of the other
party's obligations hereunder and to the granting by any such court of the
remedy of the specific performance hereunder.
11.08 GOVERNING LAW. This Agreement shall in all respects be governed
by and construed in accordance with the laws of the State of Florida.
11.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same instrument.
11.10 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
11.11 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement, or in any other instrument referred to herein,
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument.
38
IN WITNESS WHEREOF, BankUnited and Central have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
BANKUNITED FINANCIAL CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President and
Chief Operating Officer
CENTRAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board
39
EXHIBIT A
TERM
NAME AND ADDRESS EXPIRES
---------------- -------
DIRECTORS
---------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1999
▇.▇. ▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1998
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 1999
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1999
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1998
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ 2000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D. 2000
▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2000
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
CURRENT BANKUNITED LOCATIONS:
----------------------------
CORAL GABLES CORPORATE OFFICE
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(▇▇▇) ▇▇▇-▇▇▇▇
DADE COUNTY
Coral Gables branch
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
South Miami branch
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BROWARD COUNTY
Coconut Creek branch
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Coral Springs branch
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Deerfied Beach branch
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Hallandale branch
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Hollywood branch
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lauderdale-by-the-Sea branch
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▇▇▇▇▇▇▇▇▇▇-▇▇-▇▇▇-▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Pembroke Pines branch
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Pompano Beach branch
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▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tamarac branch
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PALM BEACH COUNTY
Boca Hamptons
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Boca Raton branch
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Boynton Beach branch
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▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
West Delray Beach branch
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West Palm Beach branch
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
LOCATIONS TO BE ACQUIRED WITH CENTRAL BANK
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Main ▇▇▇▇▇▇
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▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Coral Gables branch
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Palm Springs Mile ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Palmetto Lake ▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT C
BankUnited Financial Corporation
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Merger with Central Bank
Gentlemen:
The undersigned, directors of Central Bank, who are also stockholders
in said Bank and the undersigned, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (in his fiduciary capacity)
and ▇▇▇▇▇▇▇ ▇▇▇▇▇, both of whom are stockholders in Central Bank, agree that
they will vote their stock in favor of the proposed merger at the stockholders'
meeting and that they will otherwise support the proposed merger.
Very truly yours,
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
Date: __________________________________
EXHIBIT D
Rule 145 Affiliate Agreement
Pursuant to Section 8.06
of the Agreement and Plan of Merger
Name (please print)___________________
December ___, 1997
BankUnited Financial Corporation
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Madam or Sir:
This letter is delivered to you in compliance with Section 8.06 of the
Agreement and Plan of Merger, dated December __, 1997 (the "Agreement"), between
BankUnited Financial Corporation ("BankUnited") and Central Bank ("Central"),
providing for the merger (the "Merger") of Central with and into BankUnited.
1. The undersigned represents and warrants to you that the shares of
Class A Common Stock of BankUnited (the "BankUnited Stock"), which the
undersigned shall receive in exchange for shares of common stock of Central are
not being acquired by the undersigned with a view to their distribution except
to the extent and in the manner provided for in paragraph (d) of Rule 145 under
the Securities Act of 1933, as amended (the "Act"). The undersigned agrees that
the undersigned will not sell, transfer or otherwise dispose of any shares of
BankUnited Stock to be received by the undersigned in connection with the Merger
unless (i) such sale, transfer, or other disposition has been registered under
this Act, (ii) such sale, transfer, or other disposition is made in conformity
with the volume and other applicable limitations of Rule 145 under the Act, or
(iii) the undersigned at the undersigned's expense delivers to BankUnited an
opinion of counsel in form and substance reasonably satisfactory to BankUnited
to the effect that the proposed transfer of BankUnited Stock does not violate
the federal securities laws.
2. The undersigned acknowledges that to the extent the undersigned
believed necessary, the undersigned discussed this letter and any applicable
limitations upon the resale of BankUnited Stock with either counsel for
undersigned or counsel for Central. The undersigned agrees that BankUnited may
place the legend set forth below on the certificate or certificates for any or
all BankUnited Stock to be received by the undersigned in connection with the
Merger and may file stop-transfer instructions with respect to such shares with
the transfer agent for such shares. The undersigned understands that the legend
set forth on the certificate or certificates for BankUnited Stock to be received
by the undersigned shall be removed as well as the related stop-transfer
instructions when such restrictions are no longer applicable to such shares.
3. Pursuant to the provisions of the preceding paragraph, the
certificate or certificates evidencing BankUnited Stock received by the
undersigned may bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION TO WHICH RULE 145
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, APPLIES. NO TRANSFER OF SUCH SHARES SHALL
BE VALID OR EFFECTIVE UNTIL THE CONDITIONS OF SUCH
RULE HAVE BEEN FULFILLED."
Very truly yours,
____________________________
Signature