SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
[ ] QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarter ended June 30, 1997
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___________ to ______________
Commission File No. 33-97422
COUNTY FINANCIAL CORPORATION
(Name of Small Business Issuer as Specified in its Charter)
FLORIDA 59-2320497
(State or jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
801 N.E. 167 STREET
NORTH MIAMI BEACH, FLORIDA 33162
(Address of Principal Executive Offices)
ISSUER'S TELEPHONE NUMBER: (305) 651-7110
-----------------------------
Check whether the issuer: (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for past 90 days.
Yes X No
As of June 30, 1997 the registrant had 1,265,081 outstanding shares of
common stock $.01 par value.
Transitional Small Business Disclosure Format (check one):
Yes No X
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The consolidated financial statements of County Financial Corporation
and its subsidiaries (the "Company" or "CFC") for the six months ended June 30,
1997 and 1996 are set forth on pages 22 to 26 of this Form 10-QSB.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION FOR THE SIX MONTHS ENDED JUNE 30, 1997 AND 1996
RESULTS OF OPERATIONS
CFC's consolidated net income for the first six months of 1997 was
$1,898,000 or 11.5% more than the $1,702,000 earned in the same period in 1996.
Net income per common share was $1.50 in 1997 compared to $1.35 in 1996.
CFC's performance in the first six months of 1997 resulted in a return
on average stockholders' equity of 17.6%, compared to 16.5% in 1996. The return
on average assets was 1.62% in 1997, compared to 1.49% in 1996.
The improvement in CFC's performance is due to increased net interest
income, higher non-interest income (which was primarily from the sale of OREO),
and the tax benefit resulting from payment of a litigation settlement. The
positive impact of these items was partially offset by increased operating
expenses.
NET INTEREST INCOME
Net interest income is defined as the total of interest income on
earning assets less interest expense on deposits and other interest-bearing
liabilities. Earning assets, which consist of loans, investment securities and
federal funds sold are financed by a large base of interest-bearing funds in the
form of money-market, NOW, savings and time deposits. Earning assets are also
funded by the net amount of non-interest related funds, which consist of
non-interest bearing demand deposits, the allowance for loan losses and
stockholders' equity, reduced by non-interest bearing assets such as cash and
due from banks, and premises and equipment, and other real estate owned
("OREO").
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The following table sets forth the Company's average balance sheets and
related interest, yield and rate information for the first six months of 1997
and 1996.
<TABLE>
<CAPTION>
AVERAGE BALANCE SHEETS
(AMOUNTS IN THOUSANDS)
JUNE 30,
1997 1996
----------------------------------- -------------------------------------
AVERAGE YIELD/ AVERAGE YIELD/
BALANCE INTEREST RATE BALANCE INTEREST RATE
ANNUALIZED ANNUALIZED
<S> <C> <C> <C> <C> <C> <C>
ASSETS
EARNING ASSETS:
Loans, net of unearned income $142,286 $ 7,134 10.11% $ 136,543 $ 6,746 9.94%
Investment Securities 60,156 1,861 6.24% 63,300 1,857 5.90%
Federal funds sold 11,105 298 5.41% 9,656 254 5.29%
-------- ------- ----- --------- --------
Total earning assets 213,547 9,293 8.78% 209,499 8,857 8.50%
-------- ------- ----- --------- --------
NON-INTEREST EARNING
ASSETS:
Cash and due from banks 13,490 12,785
Premises and equipment, net 4,299 4,223
Other Real Estate Owned, net 3,603 3,317
Other assets 3,069 2,688
Allowance for loan losses (2,258) (2,647)
-------- ---------
Total non-interest
earning assets 22,203 20,366
-------- ---------
TOTAL ASSETS $235,750 $229,865
======== =========
LIABILITIES AND
STOCKHOLDERS' EQUITY
INTEREST BEARING LIABILITIES:
Savings accounts $ 23,915 $ 355 2.99% $ 23,815 $ 338 2.85%
Money market/NOW accounts 69,269 785 2.29% 72,897 854 2.36%
Time deposits 54,701 1,487 5.48% 51,451 1,370 5.35%
Repurchase agreements 1,938 31 3.23% 1,862 34 3.67%
Other borrowings 813 41 10.17% 913 46 10.13%
-------- ------- ----- --------- -------- -----
Total interest
bearing liabilities 150,636 2,699 3.61% 150,938 2,642 3.52%
-------- ------- ----- --------- -------- -----
NON-INTEREST BEARING
LIABILITIES:
Demand deposits 61,344 56,473
Other liabilities 2,033 1,767
-------- ---------
Total non-interest
bearing liabilities 63,377 58,240
-------- ---------
Total liabilities 214,013 209,178
STOCKHOLDERS' EQUITY 21,737 20,687
-------- ---------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $235,750 $229,865
======== =========
Net interest Income/Spread $ 6,594 5.17% $ 6,215 4.98%
Net Interest Yield ======== =========
6.23% 5.97%
</TABLE>
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Notes: - The amounts set forth as average balances
are based on daily averages for each period.
- Loan fees, which are included in interest income
and in the calculation of average yields, were
$323,000 and $124,000 in the first six months of 1997
and 1996, respectively.
- Tax exempt income is not calculated on a tax
equivalent basis.
- Non-accruing loans are included in average loans.
Net interest income is primarily affected by changes in the amounts and
types of earning assets, interest-bearing funds and net non-interest related
funds, as well as their relative sensitivity to interest rate movements.
Net interest income for the six months of 1997 was $6,594,000, up 6.1%
from $6,215,000 in 1996. This increase was due to higher yields on all earning
assets, as well as higher balances for loans and federal funds sold (which
offset a slight decline in investment securities).In this connection, average
loans increased from $136,543,000 in 1996 to $142,286,000 in 1997, or
$5,743,000. The increase in average loans was also accompanied by an increase in
the yield, which grew from 9.94% in 1996 to 10.11% in 1997. Federal funds sold
increased from $9,656,000 in 1996 to $11,105,000 in 1997 or $1,449,000. The
yield on these earning assets rose from 5.29% in 1996 to 5.41% in 1997. In
contrast to other earning assets, investment securities declined from
$63,300,000 in 1996 to $60,156,000 in 1997, or $3,144,000. During the same
period, the yield on investment securities increased from 5.90% to 6.24%. In
general, the higher yields on the Company's earning assets were a reflection of
increasing interest rates in the economy at large. The effect of the foregoing
items was to increase the yield on the Company's earnings assets from 8.50% for
the first six months of 1996 to 8.78% for the first six months of 1997.
The Company's net interest margin for the first six months of 1997 was
positively impacted by the relatively small increase in the Company's interest
expense during the first six months of 1996. Interest expense grew from
$2,642,000 in 1996 to $2,699,000 in 1997, or only $57,000. This modest increase
was attributable to a drop in the total amount of interest bearing liabilities,
which declined from $50,938,000 in 1996 to $50,636,000 in 1997. The positive
impact of this decline was offset by a small increase in the average rate for
interest bearing liabilities, which grew from 3.52% to 3.61%.
The improvement in the Company's net interest margin was also supported
by the increase in the Company's non-interest bearing demand deposits, which
grew from $56,437,000 in 1996 to $61,344,000 in 1997.
The cumulative effect of the foregoing changes was to increase the
Company's net interest spread from 4.98% in 1996 to 5.17% in 1997.
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NON-INTEREST INCOME
Non-interest income in the first six months of 1997 totaled $1,528,000,
compared with $1,405,000 in 1996. Gains on the sale of O.R.E.O. for the first
six months of 1997 totaled $130,000 as compared to $1,000 in gains for 1996.
INVESTMENT SECURITIES GAINS AND LOSSES
At June 30, 1997, the Company held investment securities with a market
value of $58,993,000, which was $107,000 lower than the amortized cost of the
portfolio. This difference consisted of $182,000 of gross unrealized gains and
$289,000 of gross unrealized losses. There were net losses of $ 12,000 from the
sale of securities in the first six months of 1997, versus net losses of $7,000
for the same period of 1996.
PROVISION FOR LOAN LOSSES
The provision for loan losses totaled $ 12,000 in both the first six
months of 1997 and 1996. See "Allowance and Provision for Loan Losses."
NON-INTEREST EXPENSES
Non-interest expenses for the first six months of 1997 totaled
$6,212,000, which was up 6.2% from $5,852,000 in 1996. Non-interest expenses are
discussed below in more detail.
PERSONNEL. Personnel expense (which includes salaries and benefits)
represented 48.5% of total non-interest expenses in 1997. Personnel expenses
increased 4.8% to $3,014,000 in 1997 from $2,874,000 in 1996. Staff on a
full-time equivalent basis averaged 170 in 1997 compared to 161 in 1996. The
increase in personnel expenses was the result of salary increases, bonuses and
additional staffing for a new branch, which opened in February, 1997.
OCCUPANCY EXPENSE. Net occupancy expense in 1997 totaled $898,000, up
12.1% from $801,000 in 1996. The increase was due to the opening of a new branch
in Boca Raton, Florida in February 1997, and higher maintenance and rent at
existing branch locations due to inflation increases.
PREMISES AND EQUIPMENT EXPENSE. Premises and equipment expense, which
includes furniture and equipment depreciation, rental and maintenance, totaled
$336,000 in 1997, up 16.3% from $289,000 in 1996. The increase is due to
additional depreciation and maintenance costs on computer equipment, equipment
furniture and fixture purchases together with technological upgrades.
OTHER NON-INTEREST EXPENSES. Other non-interest expenses for the first
six months of 1997 totaled $1,964,000, up 4.0% from $1,888,000 in 1996. The
principal reasons for the increase were reductions in the carrying value for
OREO, higher management expenses for existing OREO properties and higher
pre-foreclosure expenses. These items increased from
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$108,000 in 1996 to $508,000 in 1997. The Company also incurred increases in
other expense categories due to the growth of CNB. The foregoing increases were
partially offset by a drop in legal and professional fees, which decreased from
$748,000 for the first six months of 1996 to $333,000 for the same period of
1997. This decrease was due to the settlement of several legal proceedings
related to the Premium Sales matter. See Part II - Item 1 - Legal Proceedings,
below.
CAPITAL EXPENDITURES
CFC's capital expenditures are reviewed by its Board of Directors. CFC
makes capital expenditures in order to improve its ability to provide quality
services to its customers. Capital expenditures for the first six months of 1997
equaled $560,000 compared to $187,000 in 1996, and were principally related to
expenditures for two new branch offices and changes in equipment due to
technological advances. Capital expenditures through June 30, 1997 for the new
branch opened February 1997 in Boca Raton, Florida totaled $109,000. CFC
received approval from the Office of the Comptroller of the Currency for the
opening of a new branch in Pembroke Pines, Florida on August 30, 1996. The
opening date is anticipated for the third quarter of 1997 and capital
expenditures have been estimated at $527,000. The Company also expects to incur
other start up costs and expenses in connection with the opening of this branch.
ASSET QUALITY AND CREDIT RISK
INVESTMENT SECURITIES. CFC maintains a high quality investment
portfolio including U.S. Treasury securities, securities of other U.S.
government entities and other securities such as Federal Reserve Bank stock.
Securities issued by the U.S. Treasury or other U.S. government entities
constitute approximately 99.1% of CFC's investment portfolio at June 30, 1997.
CFC believes that these securities have very little risk of default. At June 30,
1997, 100% of the securities held in CFC's investment portfolio were classified
available for sale. Of those securities, 99.9% were rated "AAA", the highest
assigned rating. A rating of "A" or better means that the bonds are of "upper
medium grade, with strong ability to repay, possibly with some susceptibility to
adverse economic conditions or changing circumstances.". Ratings are assigned by
independent rating agencies and are subject to the accuracy of reported
information concerning the issuers and the subjective judgment and analysis of
the rating agencies. They are not a guarantee of collectibility. Approximately
29.3% of these securities mature or reprice in one year or less and 93.5% in
five years or less. As such, the risk of significant fluctuations in value due
to changes in the general level of interest rates is limited.
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The following table sets forth information regarding the composition of
the investment portfolio at June 30, 1997 and 1996 (amounts in thousands).
INVESTMENT PORTFOLIO
JUNE 30,
-------------------------
1997 1996
---- ----
(amounts in thousands)
U.S. Treasury Securities $34,028 $ 34,353
Securities of other U.S. Government 24,440 25,112
agencies and corporations
Obligations of states and political -0- 96
subdivisions
Other Securities 525 525
-------- --------
Total investments $58,993 $60,086
======== ========
CFC's investment portfolio decreased by 1.8% from the period of June
30, 1996 to June 30, 1997, primarily due to principal repayment on U.S.
government agency mortgage backed securities.
LOANS. CFC maintains a high quality portfolio of real estate,
commercial and consumer loans. All loans are reviewed and approved by CFC's loan
committee, which ensures that loans comply with applicable credit standards. In
most cases, CFC requires collateral from the borrower. The type and amount of
collateral varies but may include residential or commercial real estate,
deposits held by financial institutions, U.S. Treasury securities, other
marketable securities and personal property. Collateral values are monitored to
ensure that they are maintained at proper levels.
As of June 30, 1997, approximately 74% of all CFC's loans were real
estate loans secured by real estate in South Florida. This level of
concentration could present a potential credit risk to CFC because the ultimate
collectibility of these loans are susceptible to adverse changes in real estate
market conditions in this market. CFC has addressed this risk by limiting most
loans to a maximum of 70% of the appraised value of the underlying real estate
and maximum amortization schedules of 20 years.
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Most of the loans have a stated maturity of five to ten years and may
be renewed or rolled over at maturity. At that time, CFC undertakes a complete
review of the borrower's credit worthiness and the value of any collateral. If
these items are satisfactory, CFC will generally renew the loan at prevailing
interest rates. The following table divides CFC's loan portfolio into five
categories.
<TABLE>
<CAPTION>
TYPES OF LOANS
June 30,
----------------------------------------
1997 1996
---- ----
(amounts in thousands)
<S> <C> <C>
Commercial, financial and agricultural $ 34,755 $ 35,387
Real estate - construction 9,031 9,714
Real estate - mortgage 95,744 98,000
Installment loans 1,531 1,640
Overdrafts 238 226
-------- --------
Total loans $141,299 $144,967
======== ========
</TABLE>
COMMERCIAL, FINANCIAL AND AGRICULTURAL LOANS. CFC makes commercial,
financial and agricultural loans to businesses located in South Florida. The
credit risk associated with business lending is influenced by general economic
conditions, deterioration in a borrower's capital position resulting in
increasing debt to equity ratios, deterioration in a borrower's cash position
resulting in a liquidity problem, and decreasing revenues due to inefficient
operations of the borrower. These loans are generally secured by corporate
assets, marketable securities or other liquid financial instruments. These loans
totaled approximately $34,755,000 at June 30, 1997, and $34,689,000 at June 30,
1996. Legally binding commitments to extend credit and letters of credit for
these borrowers totaled $16,512,000 at June 30, 1997 compared to $15,663,000 at
June 30, 1996.
REAL ESTATE CONSTRUCTION LOANS. CFC makes real estate construction
loans from time to time for real estate projects located in South Florida. CFC
generally requires security in the form of a mortgage on the underlying real
property and the improvements constructed thereon and personal guarantees. CFC
attempts to limit its credit exposure to 70% of the appraised value of the
underlying real property. On June 30, 1997, construction loans totaled
$9,031,000. Risks associated with construction loans include variations from
vacancy projections, delays in construction, environmental factors, reliability
of subcontractors and timing and reliability of inspections, and costs overruns.
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REAL ESTATE MORTGAGE LOANS. CFC makes both commercial and residential
real estate loans. These loans were $95,744,000 at June 30, 1997. Risks
associated with real estate mortgage loans include reliability of appraisals,
deterioration of market value, environmental contamination, and accelerated
depreciation of property due to deferred maintenance.
CFC makes real estate loans secured by commercial real estate,
including loans to acquire or refinance office buildings, warehouses and
apartments. At June 30, 1997, these loans totaled $78 million, or 55.3% of total
loans. Most of these loans have a maturity of five years or less. Almost all of
these loans are secured by real property located in South Florida. These loans
generally require a loan-to-collateral value of not more that 70%. At June 30,
1997, CFC had $2.9 million in legally binding commitments to extend credit or
standby letters of credit involving commercial real estate borrowers, compared
to $1.6 million at June 30, 1996.
Residential real estate loans totaled $18 million, or 12.6% of total
loans at June 30, 1997, compared with $21 million, or 14.8% at June 30, 1996.
Residential real estate loans are predominately adjustable rate home mortgages
which generally require a loan-to-collateral value of not more than 70% and
equity credit lines, which generally limit the loan-to-collateral value to not
more than 70% to 80%. Most loans have a maximum term of five to seven years. CFC
does not ordinarily charge any points on its real estate loans. Almost all of
the residential real estate loans are secured by homes in South Florida. Legally
binding commitments to extend credit secured by residential mortgages totaled
$2,000,000 as of June 30, 1997 compared to $2,068,000 as of June 30, 1996.
INSTALLMENT LOANS. CFC offers consumer loans and personal and secured
loans. The security for these loans ordinarily consists of automobiles, consumer
goods, marketable securities, certificates of deposit and similar items. These
loans totaled approximately $1.5 million, or 1.1% of total loans, on June 30,
1997, compared with $1.6 million, or 1.1% of total loans, on June 30, 1996.
Risks associated with installment loans include loss of employment of borrowers,
declines in the financial condition of borrowers resulting in delinquencies, and
rapid depreciation of loan collateral.
NON-PERFORMING ASSETS AND PAST DUE LOANS
Non-performing assets consist of non-accrual loans and residential and
commercial properties acquired in partial or total satisfaction of problem
loans, which are known as "other real estate owned", or "OREO." Past due loans
are loans that are delinquent 30 days or more, which are still accruing
interest.
Maintaining a low level of non-performing assets is important to the
ongoing success of any financial institution. CFC's credit review and approval
process is critical to CFC's ability to minimize non-performing assets on a
long-term basis. In addition to the negative impact on interest income,
non-performing assets also increase operating costs due to the expense of
collection efforts. It is CFC's policy to place all loans which are past due 90
days or more on non-accrual status, subject to exceptions made on a case by case
basis.
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The following table presents CFC's non-performing assets and past due
loans for 1997 and 1996.
NON-PERFORMING ASSETS AND 90 DAY PAST DUE LOANS
June 30,
----------------------
1997 1996
---- ----
(amounts in thousands)
Non-Accrual Loans $1,122 $1,988
OREO, net 2,885 3,394
------ ------
Total Non Performing Assets $4,007 $5,382
====== ======
Accruing Loans Past Due $ 0 $ 0
90 Days ====== ======
Of the total loan portfolio of $141.3 million at June 30, 1997, $4.0
million or 2.8%, was non-performing, a decrease of $1,375,000 from June 30,
1996. Non-performing loans at June 30, 1997 consisted of commercial and
residential real estate loans. The decrease in non-accrual loans of $866,000 was
the result of a reduction in the carrying value of three real estate loans in
the process of foreclosure and one commercial loan pending restructure.
Other real estate owned at June 30, 1997 consisted of $1,152,000 of
residential real estate and $1,821,000 of commercial real estate, net of an
$88,000 general reserve. OREO at June 30, 1996 consisted of $1,092,000 of
residential real estate and $2,302,000 of commercial real estate. CFC believes
that the carrying value of its OREO portfolio is realizable. The decrease in
OREO was due to the sale of two properties in the first six months of 1997.
ALLOWANCE AND PROVISION FOR LOAN LOSSES
CFC evaluates the adequacy of its allowance for loan losses as part of
its ongoing credit review and approval process. The review process is intended
to identify, as early as possible, customers who may be facing financial
difficulties. Once identified, the extent of the client's financial difficulty
is carefully monitored by CFC's loan review officer, who recommends to the
directors loan committee the portion of any credit that needs a specific reserve
allocation or should be charged off. Other factors considered by the loan
committee in evaluating the adequacy of the allowance include overall loan
volume, historical net loan loss experience, the level and composition of
non-accrual and past due loans, local economic conditions, and value of any
collateral. From time to time, specific amounts of the reserve are designated
for certain loans in connection with the loan committee's and review officer's
analysis of the adequacy of the allowance for loan losses.
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While the largest portion of this allowance is typically intended to
cover specific loan losses, it is considered a general reserve, which is
available for all credit-related purposes. The allowance is not a precise
amount, but is derived based upon the above factors and represents management's
best estimate of the amount necessary to adequately cover probable losses from
current credit exposures. The provision for loan losses is a charge against
current earnings and is determined by management as the amount needed to
maintain an adequate allowance.
The overall credit quality of the loan portfolio has improved in recent
years as evidenced by CFC's relatively low level of non-performing loans and net
charge-offs. Management relied on these factors, as well as its assessment of
the financial condition of specific clients facing financial difficulties, in
deciding to permit the level of the allowance for loan losses to drop to
$2,120,000 at June 30, 1997, from $2,587,000 at June 30, 1996. CFC's allowance
for loan losses at June 30, 1997 represents approximately 1.50% of total loans.
For the six months ended June 30, 1996, and the six months ended June
30, 1997, charge-offs decreased from 0.32% to 0.29% of the entire loan
portfolio. Net charge-offs declined from $465,000 for the first six months of
1996 to $416,000 for 1997. The net amounts charged off in 1997 were: $405,000 in
commercial loans, $12,000 in real estate loans and recoveries of $1,000 in
installment loans.
FINANCIAL CONDITION
CFC's goal is to maintain a high quality and liquid balance sheet. CFC
seeks to achieve this objective through increases in collateralized loans, a
strong portfolio of real estate loans and a stable portfolio of investment
securities of high quality.
INVESTMENT SECURITIES. As of June 30, 1997, investment securities
averaged $60.2 million or 28.5% of total earning assets. CFC's management
strategy for its investment account is to maintain a very high quality portfolio
with generally short-term maturities. The average investment portfolio, all of
which has been classified as available for sale, decreased 4.9% from $63.3
million at June 30, 1996 to $ 60.2 million at June 30, 1997.
LOANS. Loans averaged $ 142.3 million in the first six months of 1997
compared to $136.5 million for the same period of 1996, or an increase of 4.2%.
See "Asset Quality and Credit Risk - Loans," above.
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INTEREST-BEARING LIABILITIES. Average total interest-bearing
liabilities decreased slightly from $151.0 million for the first six months of
1996 to $150.6 million for the same period in 1997. The composition of
interest-bearing liabilities changed as funds shifted from money market/NOW
accounts to higher yielding time deposits. As a result, average time deposits
increased from 34.1% of total interest-bearing liabilities in 1996 to 36.3% in
1997. The yield on savings and time deposit increased while the yield on money
market/NOW accounts deceased slightly. The effect the changes in deposit mix and
rates was to increase the rate on total interest bearing liabilities from 3.52%
in the first six of 1996 to 3.61% for the same period in 1997.
LIQUIDITY AND RATE SENSITIVITY
The principal functions of asset and liability management are to
provide for adequate liquidity, to manage interest rate exposure by maintaining
a prudent relationship between rate sensitive assets and liabilities and to
manage the size and composition of the balance sheet so as to maximize net
interest income.
Liquidity is the ability to provide funds at minimal cost to meet
fluctuating deposit withdrawals or loan demand. These demands are met by
maturing assets and the capacity to raise funds from internal and external
sources. CFC primarily utilizes cash, federal funds sold and securities
purchased under repurchase agreements to meet its liquidity needs. Although not
utilized in managing daily liquidity needs, the sale of investment securities
provides a secondary source of liquidity.
Fluctuating interest rates, increased competition and changes in the
regulatory environment continue to significantly affect the importance of
interest rate sensitivity management. Rate sensitivity arises when interest
rates on assets change in a different period of time or a different proportion
than that of interest rates on liabilities. The primary objective of interest
rate sensitivity management is to prudently structure the balance sheet so that
movements of interest rates on assets and liabilities are highly correlated and
produce a reasonable net interest margin even in periods of volatile interest
rates.
Regular monitoring of assets and liabilities that are rate sensitive
within 30 days, 90 days, 180 days and one year is an integral part of CFC's
rate-sensitivity management process. It is CFC's policy to maintain a reasonable
balance of rate-sensitive assets and liabilities on a cumulative one year basis,
thus minimizing net interest income exposure to changes in interest rates. CFC's
sensitivity position at June 30, 1997 was such that net interest income would
increase modestly if there was an increase in short-term interest rates.
CFC monitors the interest rate risk sensitivity with traditional gap
measurements. The gap table has certain limitations in its ability to accurately
portray interest sensitivity; however, it does provide a static reading of CFC's
interest rate risk exposure.
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As of June 30, 1997, CFC remained asset sensitive (interest sensitive
assets subject to repricing exceeded interest sensitive liabilities subject to
repricing) on a 365-day basis to the extent of $5.0 million. This positive gap
at June 30, 1997 was 2.1% of total assets compared with 1.4% at June 30, 1996.
The primary cause for this increase in the gap was the increase in the
percentage of variable rate loans to total loans, from 48.5% at June 30, 1996 to
61.8% at June 30, 1997, which represented an increase in the amount of interest
sensitive loans maturing within one year of $8.0 million.
CFC's targeted gap position is in the range of negative 5 percent to
positive 10 percent. Therefore, the 2.1% interest sensitive gap position for
June 30, 1997 is within established parameters. CFC measures its gap position as
a percentage of its total assets.
While the absolute level of gap is a measurement of interest rate risk,
the quality of the assets and liabilities in the balance sheet must be analyzed
in order to understand the degree of interest rate risk taken by CFC. CFC does
not invest in any derivative products in order to manage or hedge its interest
rate risk.
CAPITAL
One of management's primary objectives is to maintain a strong capital
position to merit the confidence of customers, bank regulators and stockholders.
A strong capital position helps CFC withstand unforeseen adverse developments
and take advantage of attractive lending and investment opportunities when they
arise. During the first six months of 1997, stockholders' equity increased by
$1,894,000, or 9.0%, from December 31, 1996.
The Federal Reserve's final rules pertaining to risk-based capital
became effective as of December 31, 1992. Under these rules, at June 30, 1997,
CFC's tier one capital was 14.3% and the total capital was 15.5% of risk-based
assets. These risk-based capital ratios are well in excess of the minimum
requirements of 4% for tier one and 8% for total risk-based capital ratios. Both
of these capital ratios increased during the second quarter of 1997 as equity
capital increased by 4.1% and risk-based assets only increased by 0.7%. CFC's
leverage ratio (tier one capital to total average quarterly assets) of 9.8% at
June 30, 1997, is also well in excess of the minimum 4% requirement.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
PREMIUM GROUP LITIGATION
As previously reported, CNB is party to several legal proceedings
arising out of the failure of the food "diverting" business owned and operated
by Premium Sales Corporation, Plaza Trading Corporation and certain of their
affiliates and associates (the "Premium Group").
In October, 1996 CNB entered into settlements with respect to all
pending legal matters related to the Premium Group matter in exchange for a
payment of $3,000,000. CFC expensed the entire amount of the settlement for
accounting purposes during the fiscal year ending December 31, 1996 although the
cash payment was not made until January 1997. The amount of the payment will be
treated as a deduction for income tax purposes during 1997. Accordingly, this
payment will reduce a large part of CFC's anticipated taxable income during
1997. CFC funded the settlement from its existing cash reserves, which were
purposefully maintained at relatively high levels. As a result, the settlement
did not have a significant impact on CFC's liquidity levels.
CNB is aware that the U.S. Attorney has convened a grand jury to
investigate possible criminal violations with respect to the Premium Group
matter. This has been under investigation for several years. To date, several
directors and officers of CNB have appeared as witnesses before the grand jury.
On August 1996, a federal grand jury indicted several principals of Premium for
fraud. One officer of CNB, Larry Robinette, has been indicted for complicity in
the fraud. Mr. Robinette has vigorously denied the charges and is entitled to
the constitutional presumption of innocence. No other officer or director of
CNB, nor CNB itself , has been named as either a target of the investigation or
charged with any wrongdoing.
LITIGATION INVOLVING FLORIDA HOME FINDERS, INC.
In June 1995, CNB made a loan in the amount of $2,000,000 to the
principals of Florida Home Finders, Inc. ("FHF"). The principals utilized the
loan proceeds to pay for part of the purchase price of FHF. The loan was secured
by a pledge of a $2,000,000 certificate of deposit established by FHF at the
time of the loan. FHF is a property management company. As part of its business,
it apparently received security deposits from tenants at properties managed by
FHF. It has been alleged that FHF utilized these tenant security deposits to
establish the certificate of deposit at CNB.
In September, 1995, the Florida Department of Business Regulation (the
"DBR") filed an action in the Circuit Court for St. Lucie County, Florida
against FHF and its principals based on the alleged misuse of the tenant
security deposits and other items. As part of this proceeding, the DBR sought a
temporary injunction preventing CNB from offsetting the $2,000,000 certificate
of deposit against the amount of the loan. In seeking the injunction, the DBR
alleged that the certificate of deposit represented tenants' security deposits
and that such funds should have been
14
<PAGE>
held in segregated accounts by FHF. The court granted the temporary injunction
without notice to CNB. CNB subsequently intervened in the proceeding and
requested the court to dissolve the injunction because: (i) CNB had a valid and
perfected security interest in the certificate of deposit, (ii) FHF had the
right under Florida law to utilize the security deposits to establish the
certificate of deposit because it had posted a $250,000 bond with the State of
Florida; and (iii) certain other reasons. The court subsequently held that the
injunction would dissolve within 10 days unless the DBR either posted a bond in
the amount of $25,000,000 with the court, or filed a motion with the appellate
court and secured a stay with respect to its obligation to post the bond. The
DBR failed to take either action within the required time period.
In October, 1995, CNB took the position that the injunction against CNB
was dissolved because the DBR had failed to take either of the actions required
by the Circuit Court within the required time period. Accordingly, CNB applied
the certificate of deposit against the outstanding balance of the defaulted
loan. The receiver for FHF subsequently notified CNB that the setoff of the
certificate of deposit was allegedly improper, and demanded that the certificate
of deposit be reestablished.
In August 1996, the receivers for FHF filed an amended complaint
against a variety of defendants, including CNB, with respect to the activities
of FHF. In the amended complaint, the receivers sought, among other things, the
return of the $2,000,000 certificate of deposit set off by CNB based upon
theories of fraudulent conveyance, negligence and unjust enrichment. In January
1997, the receivers of FHF voluntarily dismissed (without prejudice) their
complaint, purportedly for the purpose of conserving the assets of the estate of
FHF.
In June 1997, the receivers for FHF filed a new complaint against CNB
with the Circuit Court for St. Lucie County, Florida. In the new complaint, the
receivers are seeking a judgment against CNB in the amount of $2,000,000, plus
punitive and treble damages, interest and costs. The receivers' complaint
contains counts based on common low conversion, statutory conversion, unjust
enrichment, fraud, fraudulent transfer, money lent negligence, rescission of
negotiable instruments and Civil RICO. The receivers have subsequently indicated
that they intend to amend this complaint to add an additional count for civil
theft. CNB is currently preparing a motion to dismiss, which it will file
following the amendment of the complaint by the receivers for FHF. CNB believes
that it has valid defenses to the complaint and intends to vigorously defend its
position. Nevertheless, there can be no assurance as to the outcome of this
matter.
EMPLOYMENT DISCRIMINATION LITIGATION
In May 1997, a complaint was filed by John Doe against CNB in the United States
District Court for the Southern District of Florida. In the complaint, the
plaintiff alleged that he was wrongfully terminated by CNB because he was
suffering from human immunodeficiency virus ("HIV"). The plaintiff has asserted
claims of discrimination under the Americans with Disabilities Act, the
Rehabilitation Act and the Florida Civil Rights Act. The plaintiff is seeking
compensatory damages, punitive damages, costs, and attorney's fees. It is the
position of CNB that the plaintiff was terminated during his probationary period
for failing to meet CNB's
15
<PAGE>
employment criteria and that his dismissal was not related to any disability.
CNB has filed a motion to dismiss the compliant and is vigorously defending this
litigation.
CERTAIN ENVIRONMENTAL MATTERS
CFC acquired Carney Bank in January 1996 through the merger of Carney
Bank into CNB. At the time of the acquisition, Carney Bank was involved in an
environmental matter with respect to hazardous substances on certain real
property. As a result of the acquisition, the Company is now subject to such
proceedings as successor in interest to Carney Bank.
In 1993, Carney Bank took title to the premises of a former dry cleaner
located in Coral Springs, Florida pursuant to a foreclosure sale. Carney Bank
then arranged to sell the property to a third party. The purchaser required that
an environmental study be performed after the closing and that Carney Bank
indemnify the purchaser against any expenses that might result from the presence
of hazardous substances on the property. After the sale, Carney Bank engaged an
independent consultant to perform an environmental study of the property. This
study indicated that hazardous substances were located at the property. Based on
this study, Carney Bank's environmental consultant prepared a remedial action
plan (the "RAP") and submitted it to the Broward County Department of Natural
Resource Protection ("Broward County"). The RAP sets forth a plan to clean up
the hazardous substances over a period of two years. Carney Bank's consultant
estimated that the cost of the plan would be approximately $178,000. There can
be no assurance that the actual cost of clean up will not exceed the estimate
made by Carney Bank's consultant. The RAP has received final approval from
Broward County.
In 1994, the State of Florida established a Dry Cleaning Solvent
Superfund program (the "Program") under which the State of Florida will pay for
the clean up of certain contaminated dry cleaning sites. The State of Florida
has not yet issued regulations and an application form under the Program. When
the application form becomes available, the Company will apply for inclusion in
the Program. Based on the eligibility criteria set forth in the legislation, the
property would appear to qualify for inclusion in the Program. The Program
preempts local government and private enforcement actions with respect to
contaminated sites eligible for inclusion in the Program.
During 1995, Broward County requested Carney Bank to proceed with the
RAP at its own expense. Carney Bank resisted this request because it would
jeopardize its right to receive benefits under the Program. In October, 1995,
Carney Bank met with officials of Broward County to discuss this matter. Based
on the discussions, Carney Bank concluded that it was unlikely that Broward
County would institute an enforcement action with respect to the property.
If Broward County institutes enforcement action against the Company
with respect to the property, the Company intends to vigorously defend such
actions based on applicable provisions of Florida law. Although there can be no
assurance that those defenses would be successful or that the Company would not
be required to pay for clean up of the property, the Company believes that any
enforcement action against the Company will not have a material adverse effect
on the business or financial position of the Company.
16
<PAGE>
ITEM 2. CHANGES IN SECURITIES
During the quarter ended June 30, 1997, certain individuals exercised
outstanding stock options, as follows:
NAME OF PURCHASER DATE OF EXERCISE EXERCISE PRICE NUMBER OF SHARES
- ----------------- ---------------- --------------- ----------------
Phil Lohr April 25, 1997 $12.00 300
Henry Oyer May 28,1997 $ 3.85 253
Edalina Perez Llanty June 17, 1997 $12.00 200
All of these shares were sold pursuant to the exemption from
registration provided by Section 4(2) under the Securities Act of 1933.
ITEM 4. SUBMISSION OF MATTER TO A VOTE OF SECURITIES HOLDERS
The Company held its annual meeting of shareholders on April 16, 1997.
The only matter considered at this meeting was the election of directors. All of
the persons nominated by the Company for election were elected. Votes for and
against for each nominee were as follows:
NAME OF NOMINEE VOTES FOR VOTES AGAINST
--------------- --------- -------------
George M. Apelian 1,085,575 67
Dr. Julian J. Blitz 1,085,575 67
Joseph E. Carney, Jr. 1,085,333 309
Peter H. Carney 1,085,333 309
Dr. Thomas F. Carney 1,085,333 309
Morton M. Fisher 1,085,575 67
C. Bernard Jacobs 1,085,575 67
Thomas J. Langan 1,085,575 67
Milton Mamber 1,085,575 67
Dr. Morton Terry 1,085,575 67
17
<PAGE>
ITEM 5. OTHER INFORMATION
PROPOSED MERGER WITH REPUBLIC SECURITY FINANCIAL CORPORATION
CFC and CNB have entered into an Agreement and Plan of Merger dated
August 8, 1997 (the "Merger Agreement") with Republic Security Financial
Corporation ("RSFC) and Republic Security Bank ("Republic"). The following
description of the Merger Agreement is qualified in its entirety by reference to
the actual provisions of the Merger Agreement, a copy of which is included as an
exhibit to this Form 10-QSB.
The Merger Agreement provides for the merger of CFC and RSFC (the
"Parent Merger") and a related merger of CNB into Republic. It is intended that
the Parent Merger will qualify as a reorganization under Section 368(a) of the
Internal Revenue Code of 1986, and as a "pooling of interest" for accounting
purposes.
Under the terms of the Merger Agreement, on the effective date of the
Parent Merger, each outstanding share of the common stock of CFC will be
converted into a number of shares of the common stock of RSFC equal to a certain
conversion rate specified by the Merger Agreement (the "Conversion Rate"). The
Conversion Rate will be 4.807, unless: (i) the Average Closing Price on the
Determination Date is less than $7.65; and (ii) the number obtained by dividing
the Average Closing Price on such Determination Date by $8.76 is less than the
number obtained by dividing the Index Price on the Determination Date by the
Index Price on August 6, 1997 and subtracting 0.05 from the resulting quotient.
In the event of theses two contingencies, CFC shall have the right to terminate
the Merger Agreement; provided, however, that RSFC shall have the option of
adjusting the Conversion Ratio to equal the number equal to a quotient, the
numerator of which is the product of $7.65 and the Conversion Ratio (as then in
effect) and the denominator of which is the Average Closing Price. If RSFC makes
this election, no termination shall have occurred and the Merger Agreement shall
remain in effect in accordance with its terms (except as the Conversion Ratio
shall have been so modified). For purpose of the foregoing, capitalized terms
have the following definitions:
"AVERAGE CLOSING PRICE" means the average of the daily last sale prices
of RSFC common stock as reported by the NASDAQ National Market System for the 20
consecutive full trading days in which such shares are traded on the NASDAQ
National Market System beginning on the first full trading day following the
date on which the registration statement with respect to the Parent Merger is
declared effective by the SEC.
"DETERMINATION DATE" means the last day of the 20-day trading period
referred in the definition of Average Closing Price.
"INDEX PRICE" on any given date means the weighted average of the
closing prices of the common stock of 10 unaffiliated bank holding companies, as
listed in the Merger Agreement.
18
<PAGE>
On August 7, 1997, the closing price of the RSFC common stock was $9.50
per share. Based on this price, each outstanding share of CFC common stock would
have been converted into shares of RSFC common stock having a value of $45.67,
and all of the outstanding shares of CFC common stock would have been converted
into shares of RSFC common stock having an aggregate value of $57.7 million. The
actual value of the RSFC common stock to be received by the shareholders of CFC
in the Parent Merger will vary in the future, based upon changes in the price of
the shares of the RSFC common stock.
Under the terms of the Merger Agreement, all outstanding stock options
to acquire shares of CFC common stock shall be automatically converted into
options to acquire shares of the common stock of RSFC subject to appropriate
adjustment to reflect the Conversion Rate.
The consummation of the transactions contemplated by the Merger
Agreement is subject to a variety of conditions. The obligations of all parties
are subject to the receipt of all governmental approvals and the approval of the
shareholders of each of CFC and RSFC. The obligations of CFC and CNB are subject
to additional conditions including the accuracy of RSFC's representations and
warranties, the absence of any material adverse change in the business,
financial condition or prospects of RSFC, and the receipt of an opinion from an
investment banking firm as to the fairness, from a financial point of view, of
the consideration to be received by the shareholders of CFC under the Merger
Agreement. The obligations of RSFC and Republic are also subject to additional
conditions, including the accuracy of the representations and warranties of CFC
and CNB, the absence of any material adverse change in the business, financial
condition and prospects of CFC, the fulfillment by CFC of certain financial
criteria (including total deposits of not less than $205,000,000, total loans of
not less than $130,000,000, and tangible equity of not less than $23,000,000),
the exercise of appraisal rights by no more than 10% of the shareholders of CFC,
and the receipt of an opinion from an investment banking firm regarding the
fairness, from a financial point of view, of the transaction to the shareholders
of RSFC.
The Merger Agreement may be terminated under a variety of conditions,
including the inability of the parties to fulfill the conditions listed above, a
material breach by any party of its obligations under the Agreement, or the
inability of the parties to complete the transaction on or before January 31,
1998. If the Agreement is terminated due to a material breach by any party, then
the breaching party shall be required to reimburse the other parties for their
reasonable fees and expenses incurred in connection with the Merger Agreement.
Furthermore, if the Merger Agreement is terminated in contemplation of an
alternative acquisition by a third party, then, in the case of a termination by
CFC, CFC would be required to pay the amount of $1,500,000 to RSFC and, in the
case of a termination by RSFC, RSFC would be required to pay the amount of
$500,000 to CFC.
All of the directors of CFC and RSFC, in their capacity as shareholders
of CFC and RSFC, respectively, have entered into agreements pursuant to which
they have agreed, among other things, to vote in favor of the Merger Agreement.
19
<PAGE>
As indicated above, the parties' obligation to complete the
transactions contemplated by the Merger Agreement is subject to various
conditions. Accordingly, there can be no assurance that such transactions will
be consummated.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-KSB
(a) The exhibits set forth in the following Index of Exhibits are files
as a part of this report.
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
- ----------- ----------- ----------
(2) Agreement and Plan of Reorganization dated 27 to __
August 8, 1997 by and among Republic Security
Financial Corporation, Republic Security Bank,
County Financial Corporation and County National
Bank of South Florida.
(27) Financial Data Schedule __
(b) The Company did not file any reports on Form 8-K during the quarter
ended June 30, 1997.
20
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of North Miami Beach, Florida, on August 12, 1997.
COUNTY FINANCIAL CORPORATION
By:
- ------------------------------ President, Chief Executive Officer and Director
George M. Apelian (Principal Executive Officer)
By:
- ------------------------------ Executive Vice President and Chief Operating
Eileen A. Salsano Officer (Principal Financial Officer and
Principal Accounting Officer)
21
<PAGE>
<TABLE>
<CAPTION>
COUNTY FINANCIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
June 30, December 31,
ASSETS 1997 1996
(unaudited)
<S> <C> <C>
EARNING ASSETS:
Loans $ 141,299 $ 146,271
Less: Unearned Income (1)
Allowance for loan losses (2,120) (2,524)
---------- ----------
Total loans, net 139,179 143,746
---------- ----------
Securities available for sale 58,993 56,460
Federal funds sold 14,720 19,585
---------- ----------
Total earning assets 212,892 219,791
---------- ----------
CASH AND DUE FROM BANKS 14,705 15,617
PREMISES AND EQUIPMENT, Net 4,449 4,186
OTHER REAL ESTATE OWNED, Net 2,885 3,338
INTEREST RECEIVABLE 1,478 1,450
OTHER ASSETS 1,723 1,564
---------- ----------
TOTAL $ 238,132 $ 245,946
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
INTEREST BEARING LIABILITIES
Savings accounts $ 24,456 $ 24,360
Interest checking, interest checking plus and moneyfund
accounts 68,266 71,288
Certificate of deposit, $100,000 and over 19,542 14,437
Other certificates of deposit 38,967 38,275
---------- ----------
Total interest bearing deposits 151,231 148,360
---------- ----------
Securities sold under repurchase agreements 1,753 4,750
Other borrowings 800 850
---------- ----------
Total interest bearing liabilities 153,784 153,960
---------- ----------
Demand deposits 58,752 64,950
---------- ----------
Total 212,536 218,910
---------- ----------
Interest payable 928 775
Other liabilities 1,635 5,122
---------- ----------
Total Liabilities 215,099 224,807
---------- ----------
STOCKHOLDERS' EQUITY:
Common stock $0.01 par value; 1,500,000 shares
authorized; 1,264,328, issued and outstanding 13 13
Capital Surplus 13,568 13,562
Retained earnings 9,519 7,621
Net unrealized loss on securities available for sale,
net of taxes (67) (57)
---------- ----------
Total stockholders' equity 23,033 21,139
---------- ----------
TOTAL $ 238,132 $ 245,946
========== ==========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
22
<PAGE>
<TABLE>
<CAPTION>
COUNTY FINANCIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(in thousands)
FOR THE QUARTER MONTHS ENDED FOR THE SIX MONTHS ENDED
JUNE 30, JUNE 30,
1997 1996 1997 1996
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
INTEREST INCOME:
Interest and fees on loans $ 3,568 $ 3,457 $ 7,134 $ 6,746
Interest on investment securities:
Taxable 931 986 1,861 1,846
Non-taxable 2 11
Interest on federal funds sold 167 76 298 254
---------- ---------- ---------- ----------
Total interest income 4,666 4,521 9,293 8,857
INTEREST EXPENSE:
Savings 180 166 355 338
Interest checking, interest checking plus
and moneyfund accounts 390 413 785 854
Certificates of deposit, $100,000 and over 248 191 467 360
Other certificates of deposit 518 505 1,020 1,010
Interest on other borrowings 35 34 72 80
---------- ---------- ---------- ----------
Total interest expense 1,371 1,309 2,699 2,642
---------- ---------- ---------- ----------
NET INTEREST INCOME 3,295 3,212 6,594 6,215
Provision for loan losses 6 6 12 12
---------- ---------- ---------- ----------
Net interest income after provision for loan losses 3,289 3,206 6,582 6,203
---------- ---------- ---------- ----------
NON-INTEREST OPERATING INCOME:
Service charges on deposit accounts 617 601 1,228 1,220
Net loss on sale of investment securities (16) (20) (12) (7)
Other 199 91 312 192
---------- ---------- ---------- ----------
Total non-interest operating income 800 672 1,528 1,405
---------- ---------- ---------- ----------
NON-INTEREST OPERATING EXPENSE:
Personnel expense 1,523 1,385 3,014 2,874
Occupancy expense, net 460 417 898 801
Premises and equipment expense 172 149 336 289
Other 973 1,033 1,964 1,888
---------- ---------- ---------- ----------
Total non-interest operating expense 3,128 2,984 6,212 5,852
---------- ---------- ---------- ----------
INCOME BEFORE INCOME TAXES 961 894 1,898 1,756
PROVISION FOR INCOME TAXES 54
---------- ---------- ---------- ----------
NET INCOME $ 961 $ 894 $ 1,898 $ 1,702
========== ========== ========== ==========
NET INCOME PER COMMON SHARE
AND COMMON EQUIVALENT $ 0.76 $ 0.71 $ 1.50 $ 1.35
========== ========== ========== ==========
AVERAGE SHARES OUTSTANDING 1,264,048 1,263,617 1,264,895 1,263,617
========== ========== ========== ==========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
23
<PAGE>
<TABLE>
<CAPTION>
COUNTY FINANCIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(in thousands)
Net
Unrealized
loss On
Securities
Common Capital Retained Available
Stock Surplus Earnings For Sale Total
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 $13 $13,562 $7,621 $(57) $21,139
Employee Stock Option 6 6
Net change in unrealized loss
on securities available for sale,
net of taxes. (10) (10)
Net income for the six months ended. 1,898 1,898
--- ------- ------ ---- -------
BALANCE JUNE 30, 1997 (UNAUDITED) $13 $13,568 $9,519 $(67) $23,033
=== ======= ====== ==== =======
</TABLE>
See accompanying notes to unaudited financail statements.
24
<PAGE>
<TABLE>
<CAPTION>
COUNTY FINANCIAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
FOR THE SIX MONTHS ENDED
JUNE 30,
1997 1996
(unaudited) (unaudited)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 1,898 $ 1,702
Adjustments to reconcile net income to net
cash (used) provided by operating activities:
Provision for loan losses 12 12
Depreciation and Amortization 304 224
Deferred income tax benefit 0 (17)
Net loss on sale of investment securities 12 7
(Increase) Decrease in interest receivable (28) 39
( Increase) decrease in other assets (153) 10
Increase (Decrease ) in interest payable 153 (46)
(Decrease ) Increase in other liabilities (3,487) 686
-------- --------
Net cash (used) provided by operating activities (1,289) 2,617
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales and maturities of securities
available for sale 9,732 22,133
Purchase of securities available for sale (12,299) (22,710)
Decrease in loans, net 4,971 (6,099)
Proceeds from sale of other real estate owned 37 29
Purchases of premises and equipment, net (560) (187)
-------- --------
Net cash provided (used) in provided by
investing activities 1,881 (6,834)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Decrease) Increase in savings accounts 96 1,150
(Decrease) in interest checking, checking plus
and money fund (3,023) (3,415)
Increase (Decrease) in certificates of deposit 5,797 (1,446)
Decrease in securities sold under repurchase agreements (2,997) (845)
Repayment of other borrowings (50) (50)
(Decrease) Increase in demand deposits (6,198) (2,542)
Proceeds from Employee Stock Options 6 0
-------- --------
Net cash used in financing activities (6,369) (7,148)
-------- --------
NET DECREASE IN CASH AND CASH EQUIVALENTS (5,777) (11,365)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 35,202 26,868
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 29,425 $ 15,503
======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOWS INFORMATION:
Cash paid during the period for:
Interest $ 2,596
======== ========
Income Taxes $ 185 0
======== ========
</TABLE>
See accompanying notes to unaudited consolidated financial statements
25
<PAGE>
COUNTY FINANCIAL CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- ------------------------------------------------------------------------
1. SIGNIFICANT ACCOUNTING POLICIES
County Financial Corporation ("C.F.C."), a one Bank holding company, its
wholly-owned banking subsidiary, County National Bank of South Florida
(the "Bank") and its inactive wholly-owned non-banking subsidiary, Carnco
Corporation ("Carnco") are primarily engaged in the traditional banking
practices of gathering deposits and investing in loans and investment
securities. The Bank offers these services through its main office and
twelve branches located in Dade, Broward, and Palm Beach County, Florida.
Substantially all of the Bank's activities are conducted with customers in
South Florida.
The accounting and reporting policies and practices of C.F.C., the Bank,
and Carnco conform to the practices in the banking industry and generally
accepted accounting principles.
The accounting policies followed for quarterly reporting purposes are the
same as those disclosed in the 1996 Annual Report to Stockholders of
County Financial Corporation. In the opinion of management, the
accompanying consolidated financial statements reflect all adjustments
(which include only normal recurring adjustments) necessary for a fair
presentation of the information provided. These statements have been
prepared by C.F.C. without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission. Certain information and footnotes
have been omitted pursuant to such rules and regulations. Although C.F.C.
believes that the disclosures are adequate to make the information
presented not misleading, it is suggested that these unaudited
consolidated financial statements be read in conjunction with C.F.C.'s
audited 1996 consolidated financial statements and the notes thereto.
26
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
(2) Agreement and Plan of Reorganization dated
August 8, 1997 by and among Republic Security
Financial Corporation, Republic Security Bank,
County Financial Corporation and County National
Bank of South Florida.
(27) Financial Data Schedule
EXHIBIT 2
===============================================================================
AGREEMENT AND PLAN OF MERGER
by and among
REPUBLIC SECURITY FINANCIAL CORPORATION,
REPUBLIC SECURITY BANK,
COUNTY FINANCIAL CORPORATION
and
COUNTY NATIONAL BANK OF SOUTH FLORIDA
AUGUST 8, 1997
===============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
THE PARENT MERGER
1.1 Articles of Merger........................................2
1.2 Conversion of Shares......................................2
1.3 Conversion Rate...........................................2
1.4 CFC Options...............................................4
1.5 The Closing...............................................5
1.6 Stock Certificates........................................5
1.7 Shares of Dissenting Holders..............................5
ARTICLE II
THE BANK MERGER
2.1 Plan of Merger and Merger Agreement.......................6
2.2 Conversion of Shares......................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CFC AND COUNTY
3.1 Corporate Organization....................................7
3.2 Authorization and Enforceability; No Violation............7
3.3 Capitalization; Stock Ownership...........................8
3.4 Investments; No Subsidiary................................8
3.5 County Corporate Organization.............................8
3.6 County Capitalization; Stock Ownership....................8
3.7 County Authorization and Enforceability; No Violation.....9
3.8 Financial Statements.....................................10
3.9 Loan Portfolio...........................................10
3.10 Deposits.................................................11
3.11 No Undisclosed Liabilities, Etc..........................11
3.12 Absence of Certain Changes...............................11
3.13 Real Properties..........................................13
3.14 Taxes and Fees...........................................13
3.15 Contracts................................................14
3.16 Litigation...............................................15
3.17 Compliance with Laws and Regulations.....................15
3.18 Employment Benefit Plans and Arrangements; Labor Matters.16
3.19 Accounting Practices.....................................17
3.20 Minute Books.............................................17
-ii-
<PAGE>
3.21 Insurance..................................................17
3.22 Agreements with Regulators.................................17
3.23 Environmental..............................................18
3.24 Community Reinvestment Act.................................18
3.25 Transactions with Insiders.................................18
3.26 Fidelity Bond..............................................18
3.27 Proxy Statement............................................19
3.28 Brokers....................................................19
3.29 No Untrue Statements.......................................19
3.30 Absence of Regulatory Communications.......................19
3.31 Opinion of Financial Advisor...............................19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RSFC AND REPUBLIC
4.1 RSFC Corporate Organization................................19
4.2 RSFC Authorization and Enforceability; No Violation........20
4.3 RSFC Capitalization; Stock Ownership.......................20
4.4 Investments; No Subsidiary.................................21
4.5 Republic Corporate Organization............................21
4.6 Republic Capitalization; Stock Ownership...................21
4.7 Republic Authorization and Enforceability; No Violation....22
4.8 SEC Filings................................................22
4.9 Registration Statement.....................................23
4.10 Financial Statements.......................................23
4.11 Loan Portfolio.............................................23
4.12 Deposits...................................................24
4.13 No Undisclosed Liabilities, Etc............................24
4.14 Absence of Certain Changes.................................24
4.15 Real Properties............................................26
4.16 Taxes and Fees.............................................27
4.17 Contracts..................................................27
4.18 Litigation.................................................28
4.19 Compliance with Laws and Regulations.......................29
4.20 Employment Benefit Plans and Arrangements; Labor Matters...29
4.21 Accounting Practices.......................................30
4.22 Minute Books...............................................30
4.23 Insurance..................................................31
4.24 Agreements with Regulators.................................31
4.25 Environmental..............................................31
4.26 Community Reinvestment Act.................................31
4.27 Transactions with Insiders.................................31
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4.28 Fidelity Bond.............................................31
4.29 Brokers...................................................32
4.30 No Untrue Statements......................................32
4.32 Opinion of Financial Advisor..............................32
ARTICLE V
COVENANTS OF CFC
5.1 Access, Information and Documents.........................32
5.2 No Other Transactions.....................................33
5.3 Conduct of Business Prior to the Effective Time...........33
5.4 Negative Covenants........................................34
5.5 Current Information.......................................35
5.6 Pursuit of Approvals......................................35
5.7 Meeting of CFC's Shareholders; Proxy Statement............36
5.8 CFC Future Financial Statements...........................36
5.9 Observer at Meetings......................................36
5.10 Pooling...................................................37
5.11 Coral Way Branch..........................................37
ARTICLE VI
COVENANTS OF RSFC AND REPUBLIC
6.1 Access, Information and Documents.........................37
6.2 No Other Transactions.....................................38
6.3 Conduct of Business Prior to the Effective Time...........38
6.4 Negative Covenants........................................38
6.5 Current Information.......................................39
6.6 Pursuit of Approvals......................................39
6.7 Registration Statement; Meeting of RSFC's Shareholders....39
6.8 Boards of Directors Election..............................40
6.9 Pooling...................................................40
6.10 County Employees..........................................40
6.11 Indemnification...........................................40
6.12 Future Financial Information..............................42
6.13 Observer at Meetings......................................42
6.14 Pooling and Securities Law Matters........................43
6.15 Registration Rights.......................................43
ARTICLE VII
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF RSFC, REPUBLIC, CFC AND COUNTY
7.1 Government Approvals......................................46
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7.2 Shareholder Approval.......................................46
7.3 No Litigation..............................................46
ARTICLE VIII
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF CFC AND COUNTY
8.1 Representations, Warranties and Covenants..................47
8.2 Material Change............................................47
8.3 Accountants' Comfort Letter................................47
8.4 Officers' Certificates.....................................47
8.5 Consents...................................................47
8.6 Tax Opinion................................................48
8.7 Fairness Opinion...........................................48
ARTICLE IX
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF RSFC AND REPUBLIC
9.1 Representations, Warranties and Covenants..................48
9.2 Material Change............................................48
9.3 Financial Conditions.......................................48
9.4 Demands for Appraisal......................................49
9.5 Accountants' Comfort Letter................................49
9.6 Officers' Certificates.....................................49
9.7 Consents...................................................49
9.8 Employment Agreements......................................49
9.9 Tax Opinion................................................49
9.10 CFC Affiliate Letters......................................50
9.11 Fairness Opinion...........................................50
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 Termination by Mutual Consent..............................50
10.2 Termination by CFC.........................................50
10.3 Termination by RSFC........................................50
10.4 Effect of Termination......................................51
10.5 Alternate CFC or County Transaction........................51
10.6 Alternate RSFC or Republic Transaction.....................52
10.7 Extension or Waiver........................................52
ARTICLE XI
MISCELLANEOUS
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11.1 Certain Terms............................................52
11.2 Expenses.................................................53
11.3 Legal Fees...............................................53
11.4 Entire Agreement; Amendment; Waiver......................53
11.5 Notices..................................................53
11.7 Rights Under this Agreement; Nonassignability............55
11.8 Form of This Agreement...................................55
11.9 Governing Law............................................55
11.10 Public Announcements.....................................55
11.11 Counterparts.............................................55
Schedules
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement") is made
and entered into as of August 8, 1997, by and among REPUBLIC SECURITY FINANCIAL
CORPORATION, a Florida corporation ("RSFC"), REPUBLIC SECURITY BANK, a Florida
state bank ("Republic"), COUNTY FINANCIAL CORPORATION, a Florida corporation
("CFC"), and COUNTY NATIONAL BANK OF SOUTH FLORIDA, a national bank ("County").
RECITALS
WHEREAS, each of the parties desires to provide for the
acquisition of CFC and County by RSFC and RSFC's wholly owned subsidiary,
Republic, by means of the merger of CFC into RSFC (the "Parent Merger") and the
merger of County into Republic (the "Bank Merger"), for the consideration and
upon the terms and conditions set forth herein; and
WHEREAS, the Boards of Directors of RSFC, CFC, Republic and
County believe that the Parent Merger and the Bank Merger, upon the terms and
conditions set forth herein, are in the best interest of their respective
shareholders and the Boards of Directors of RSFC and CFC have each unanimously
approved the Parent Merger and the Boards of Directors of Republic and County
have each unanimously approved the Bank Merger; and
WHEREAS, for Federal income tax purposes, it is intended that
the Parent Merger qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and, for
accounting purposes, it is intended that the Parent Merger be accounted for as a
"pooling of interests"; and
WHEREAS, the parties desire to use their best efforts to
consummate the Parent Merger and the Bank Merger prior to January 1, 1998;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which are
conclusively acknowledged, the parties do represent, warrant, covenant and agree
as follows:
<PAGE>
ARTICLE I
THE PARENT MERGER
1.1 ARTICLES OF MERGER. Subject to and in accordance with the
terms and conditions of this Agreement and the Florida Business Corporation Act,
at the Closing (hereinafter defined) RSFC and CFC shall execute and deliver for
filing Articles of Merger (the "Articles of Merger") to the Department of State
of Florida. The Articles of Merger shall provide that the Parent Merger be
effective at 9:00 a.m. (the "Effective Time") on a designated date (the
"Effective Date"). Pursuant to the terms of this Agreement, CFC shall be merged
with and into RSFC, which shall be the surviving corporation. The Plan of Merger
set forth in the Articles of Merger shall be as provided in this Agreement and
the Florida Business Corporation Act.
1.2 CONVERSION OF SHARES. At the Effective Time, each issued
and outstanding share of the common stock of CFC, par value $0.01 per share
("CFC Common Stock"), shall, by virtue of the Parent Merger and without any
action by the holder thereof, be converted into a number of shares of the common
stock of RSFC, par value $.01 per share ("RSFC Common Stock"), equal to the
Conversion Rate (as defined in Section 1.3 hereof). No fractional shares of RSFC
Common Stock shall be issued. In lieu thereof, each holder of CFC Common Stock
shall be entitled to be paid an amount in cash determined by multiplying the
holder's fractional interest by the closing price of RSFC Common Stock on the
NASDAQ-National Market System on the Effective Date. At the Effective Time, each
issued and outstanding share of RSFC Common Stock shall remain issued and
outstanding and unaffected by the Parent Merger. In the event that, prior to the
Effective Time, RSFC's Common Stock shall be changed to a different number of
shares or a different class of shares by reason of any recapitalization or
reclassification, stock dividend, combination, stock split or reverse stock
split, an appropriate and proportionate adjustment shall be made in the
Conversion Rate.
1.3 CONVERSION RATE. The "Conversion Rate" shall be 4.807;
provided, however, if:
(A) the Average Closing Price on the Determination Date of
shares of RSFC Common Stock shall be less than $7.65; and
(B) (1) the number obtained by dividing the Average Closing
Price on such Determination Date by $8.76 (such number
being referred to herein as the "RSFC Ratio") shall be
less than (2) the number obtained by dividing the Index
Price on the Determination Date by the Index Price on the
Starting Date and subtracting 0.05 from the quotient in
this
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clause (B)(2) (such number being referred to herein as
the "Index Ratio");
then CFC shall have the right to terminate this Agreement, if its Board of
Directors so determines by a vote of a majority of the members of its entire
Board, at any time during the five-day period commencing on the Determination
Date; subject, however, to the following three sentences. If CFC elects to
exercise its termination right pursuant to the immediately preceding sentence,
it shall give prompt written notice to RSFC (provided that such notice of
election to terminate may be withdrawn at any time within the aforementioned
five-day period). During the five-day period commencing with its receipt of such
notice, RSFC shall have the option of adjusting the Conversion Rate to equal the
number equal to a quotient (rounded to the nearest one-thousandth), the
numerator of which is the product of $7.65 and the Conversion Rate (as then in
effect) and the denominator of which is the Average Closing Price. If RSFC makes
an election contemplated by the preceding sentence, within such five-day period,
it shall give written notice to CFC of such election and the revised Conversion
Rate, whereupon no termination shall have occurred pursuant to this Section 1.3
and this Agreement shall remain in effect in accordance with its terms (except
as the Conversion Rate shall have been so modified), and any references in this
Agreement to "Conversion Rate" shall thereafter be deemed to refer to the
Conversion Rate as adjusted pursuant to this Section 1.3.
For purposes of this Section 1.3, the following terms shall
have the meanings indicated:
"Average Closing Price" means the average of the daily last
sales prices of RSFC Common Stock as reported by the NASDAQ National Market
System (as reported in THE WALL STREET JOURNAL or, if not reported therein, in
another mutually agreed upon authoritative source) for the twenty consecutive
full trading days in which such shares are traded on the NASDAQ National Market
System beginning on the first full trading day following the date on which the
Registration Statement referred to in Section 6.7 is declared effective by the
SEC.
"Determination Date" means the last day of the twenty-day
trading period referred to in the preceding paragraph.
"Index Group" means the group of each of the ten bank holding
companies listed below, the common stock of all of which shall be publicly
traded and as to which there shall not have been, since the Starting Date and
before the Determination Date, an announcement of a proposal for the acquisition
or sale of such company. In the event that the common stock of any such company
ceases to be publicly traded or any such announcement is made with respect to
any such company, such company will be removed
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from the Index Group, and the weights (which have been determined based on the
number of outstanding shares of common stock) redistributed proportionately for
purposes of determining the Index Price. The ten bank holding companies and the
weights attributed to them are as follows:
BANK HOLDING COMPANY WEIGHTING
-------------------- ---------
ABC Bancorp (ABCB) 12.50
American Bancorp (AMBC) 2.90
Anchor Financial Corp. (AFSC) 4.74
Century South Banks Inc. (CSBI) 14.40
First Charter Corp. (FCTR) 14.03
George Mason Bankshares Inc. (GMBS) 9.42
Hamilton Bancorp Inc. (HABK) 17.55
Peoples Holding Co. (PHCO) 7.24
Republic Bancshares Inc. (REPB) 7.75
Seacoast Banking Corp. Florida (SBCFA) 9.47
-------
100.00%
"Index Price" on a given date means the weighted average
(weighted in accordance with the factors listing above) of the closing prices of
the companies composing the Index Group.
"Starting Date" means August 6, 1997.
If any company belonging to the Index Group or RSFC declares
or effects a stock dividend, reclassification, recapitalization, split-up,
combination, exchange of shares or similar transaction between the Starting Date
and the Determination Date, the prices for the common stock of such company or
RSFC shall be appropriately adjusted for the purposes of applying this Section
1.3.
1.4 CFC OPTIONS. At the Effective Time, each outstanding
option to purchase shares of CFC Common Stock listed on Schedule 3.3 hereof
("CFC Stock Options") shall be automatically converted into an option to
acquire, on the same terms and conditions as were applicable under such CFC
Stock Option, the same number of shares of RSFC Common Stock as the holder of
such CFC Stock Option would have been entitled to receive pursuant to the Parent
Merger had such holder exercised such option in full immediately prior to the
Effective Time, at a price per share equal to (i) the aggregate exercise price
for the shares of CFC Common Stock otherwise purchasable pursuant to such CFC
Stock Option divided by (ii) the Conversion Rate.
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1.5 THE CLOSING. The closing of the transactions described
herein (the "Closing") shall take place at the offices of Morgan, Lewis &
Bockius LLP, 5300 First Union Financial Center, 200 South Biscayne Boulevard,
Miami, Florida, at 10:00 a.m., local time, on such date as the parties shall
mutually agree not more than 30 days nor less than ten days after the calendar
month end first occurring after the later of (i) the CFC shareholders meeting
referred to in Section 5.7 hereof, (ii) the RSFC shareholders meeting referred
to in Section 6.5 hereof, (iii) the date of the letter of preliminary approval
of the Department approving the Bank Merger or (iv) such later date on which all
conditions precedent to such Closing contained in Articles VII, VIII and IX
hereof have been satisfied or duly waived; or at such other date, time and place
as the parties shall agree, but in no event later than January 31, 1998.
1.6 STOCK CERTIFICATES. At the Effective Time, the stock
transfer books of CFC shall be closed and there shall be no further registration
of transfers of CFC Common Stock thereafter. At and after the Effective Time,
holders of certificates representing shares of CFC Common Stock immediately
prior to the Effective Time shall cease to have any rights with respect to CFC
Common Stock. The sole right of holders of CFC Common Stock shall be to receive
the RSFC Common Stock and cash in lieu of fractional shares to which they are
entitled by virtue of the Parent Merger. Immediately after the Effective Time,
RSFC agrees to provide Letters of Transmittal and instructions regarding the
tender of CFC stock certificates for exchange for RSFC stock certificates to
each former CFC shareholder at the shareholder's address of record on the books
of CFC. No dividends or other distributions declared or made after the Effective
Time with respect to RSFC Common Stock with a record date after the Effective
Time shall be paid to the holder of any unsurrendered CFC Common Stock
certificate with respect to the shares of RSFC Common Stock represented thereby
until the holder of record of such certificate shall surrender the certificate.
Subject to the effect of applicable laws, following surrender of any such
certificate, there shall be paid to the holder, without interest, such unpaid
dividends or other distributions.
1.7 SHARES OF DISSENTING HOLDERS. Notwithstanding anything to
the contrary contained in this Agreement, any holder of CFC Common Stock with
respect to which dissenters' rights are duly exercised in accordance with
Section 607.1320 of the Florida Business Corporation Act ("CFC Dissenting
Shares") shall not be entitled to receive shares of RSFC Common Stock pursuant
to Section 1.2 hereof, unless such holder fails to perfect, effectively
withdraws or loses his right to dissent from the Parent Merger under Section
607.1320. Such holder shall be entitled to receive only the payment provided for
by Section 607.1320. If any such holder so fails to perfect, effectively
withdraws or loses his dissenters' rights, his CFC Dissenting Shares shall
thereupon be deemed to have been converted, as of the Effective Time, into the
right to receive shares of RSFC Common Stock (and cash in lieu of fractional
shares) pursuant to Section 1.2 hereof.
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ARTICLE II
THE BANK MERGER
2.1 PLAN OF MERGER AND MERGER AGREEMENT. Subject to and in
accordance with the terms and conditions of this Agreement and Chapter 658,
Florida Statutes, Republic and County agree to enter into a Plan of Merger and
Merger Agreement (the "Plan of Merger") in accordance with the requirements of
Section 658.42, Florida Statutes, and submit the Plan of Merger to the Florida
Department of Banking and Finance (the "Department") for approval. Subject to
and in accordance with the terms and conditions of this Agreement, at the
Closing, Republic and County shall again execute the Plan of Merger, if it
differs in any respect from the counterpart thereof theretofore filed with the
Department, and shall execute certified copies of the resolutions approving the
Plan of Merger by the shareholders of each bank. The Plan of Merger and
certified resolutions shall be delivered for filing with the Department. The
Plan of Merger shall provide that County shall be merged with and into Republic
(which shall be the resulting bank in the Bank Merger) at 3:00 p.m. on the
afternoon of the Effective Date.
2.2 CONVERSION OF SHARES. Upon effectiveness of the Bank
Merger, all of the issued and outstanding shares of the common stock of County,
par value $3.00 per share ("County Common Stock"), shall be extinguished and
canceled, and RSFC, as the parent corporation of County upon effectiveness of
the Parent Merger, shall be issued a number of shares of the common stock of
Republic in such amount as agreed on or before such date by RSFC and Republic.
The shares of common stock of Republic, par value $5.00 per share, issued and
outstanding immediately prior to effectiveness of the Bank Merger shall remain
issued and outstanding and unaffected by the Bank Merger.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CFC AND COUNTY
CFC and County hereby represent and warrant to Republic and
RSFC as follows:
3.1 CORPORATE ORGANIZATION. CFC is a Florida corporation, duly
organized, validly existing and in good standing under the laws of the State of
Florida. CFC has the corporate power and authority to carry on its business and
operations as now being conducted and to own and operate its properties and
assets as now owned and being operated by it. CFC is qualified or licensed to do
business and is in good standing in each jurisdiction in which it operates,
except where the failure to do so will not have a material adverse effect on
CFC. CFC is a bank holding company, duly registered and in good standing as such
under the Bank Holding Company Act of 1956, as amended.
3.2 AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION. CFC's
Board of Directors has duly authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. Subject
to approval of the Parent Merger by shareholders of CFC owning not less than a
majority of the outstanding shares of CFC Common Stock, this Agreement is a
legal, valid and binding obligation of CFC, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and except that the availability of equitable
remedies is within the discretion of the appropriate court. The execution,
delivery and performance of this Agreement do not, and the consummation of the
Parent Merger and the Bank Merger will not, (a) violate or conflict with any
provision of the Articles of Incorporation or Bylaws of CFC; (b) except as set
forth in Schedule 3.2, require any third party consent pursuant to or result in
any breach of or default under any provision of any contract or agreement of any
kind to which CFC is a party or by which CFC is bound or to which any of its
property or assets of CFC is subject; (c) result in any breach or violation of,
or default under, or any event which with due notice or lapse of time or both
would constitute a default under, result in the termination of, or accelerate
the performance required by, or require CFC to obtain or make any consent,
authorization, approval, registration or filing (other than as described in this
Agreement), under any statute, law, bylaw, ordinance, regulation, rule,
judgment, decree, order, license, waiver, variance or other requirement of any
court or agency, board, bureau, body or department of the United States or any
state thereof which is applicable to CFC or any of the properties or assets of
CFC; (d) cause any acceleration of maturity of any note, instrument or other
obligation to which CFC is a party or by which it is bound or with respect to
which it is an obligor or guarantor; or (e) result in the creation or imposition
of any lien, pledge, claim, charge, restriction, equity or encumbrance of any
kind whatsoever upon
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or give to any other person any interest or right, including any right of
termination or cancellation, in or with respect to any of the business,
operations, properties, assets, agreements or contracts of CFC.
3.3 CAPITALIZATION; STOCK OWNERSHIP. As of the date hereof,
the authorized capital stock of CFC consists of 1,500,000 shares of common
stock, par value $0.01 per share, of which 1,265,081 shares are issued and
outstanding. All of the issued and outstanding shares of CFC Common Stock have
been duly authorized and validly issued and are fully paid and nonassessable,
and none of them were issued in violation of any preemptive or other right.
Except as described on Schedule 3.3, CFC is not a party to or bound by any
contract, agreement or arrangement to issue, sell or otherwise dispose of or
redeem, purchase or otherwise acquire any of its capital stock and there is no
outstanding option, warrant or other right to subscribe for or purchase, or
contract, agreement or arrangement with respect to, any capital stock of CFC or
any other security exercisable or convertible into any capital stock of CFC, or
any stock appreciation rights.
3.4 INVESTMENTS; NO SUBSIDIARY. Except as set forth on
Schedule 3.4, CFC does not own, directly or indirectly, any shares of capital
stock of any corporation or any equity investment in any partnership,
association or other business organization, other than County.
3.5 COUNTY CORPORATE ORGANIZATION. County is a national bank,
duly organized and validly existing under the laws of the United States and in
good standing with the Office of the Comptroller of the Currency (the "OCC") and
the Federal Deposit Insurance Corporation (the "FDIC"). County has the corporate
power and authority to carry on its business and operations as now being
conducted and to own and operate its properties and assets as now owned and
being operated by it. County's deposit accounts are duly insured by the FDIC to
the maximum extent permitted under applicable law. County has delivered to RSFC
complete and correct copies of County's Articles of Incorporation and Bylaws, as
amended to date, which are in full force and effect on the date hereof. County
is qualified or licensed to do business and is in good standing in each
jurisdiction in which it operates, except where the failure to do so will not
have a material adverse effect on County.
3.6 COUNTY CAPITALIZATION; STOCK OWNERSHIP. As of the date
hereof, the authorized capital stock of County consists of 832,928 shares of
common stock, par value $3.00 per share, of which 807,928 shares are issued and
outstanding (none of which are held by County as treasury stock), all of which
are owned by CFC. All of the issued and outstanding shares of County Common
Stock have been duly authorized and validly issued and are fully paid and
nonassessable, and none of them were issued in violation of any preemptive or
other right. County is not a party to or bound by any contract, agreement or
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arrangement to issue, sell or otherwise dispose of or redeem, purchase or
otherwise acquire any of its capital stock and there is no outstanding option,
warrant or other right to subscribe for or purchase, or contract, agreement or
arrangement with respect to, any capital stock of CFC or any other security
exercisable or convertible into any capital stock of CFC, or any stock
appreciation rights.
3.7 COUNTY AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION. The
County Board of Directors and the sole shareholder, by unanimous vote, have duly
authorized the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby with respect to County. This Agreement is a
legal, valid and binding obligation of County enforceable against County in
accordance with its terms, except as enforceability may be limited by regulatory
authorities having jurisdiction or by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and except that the availability of equitable remedies is within the
discretion of the appropriate court. Except for required regulatory approvals,
the execution, delivery and performance of this Agreement do not, and the
consummation of the Bank Merger will not, (a) violate or conflict with the
Articles of Association or Bylaws of County; (b) except as set forth in Schedule
3.7, require any third-party consent pursuant to or result in any breach of or
default under any provision of any contract or agreement of any kind to which
County is a party or by which it is bound or to which any of its property or
assets is subject; (c) result in any breach or violation of, or default under,
or any event which with due notice or lapse of time or both would constitute a
default under, result in the termination of, or accelerate the performance
required by, or require County to obtain or make any consent, authorization,
approval, registration or filing (other than as described in this Agreement),
under any statute, law, bylaw, ordinance, regulation, rule, judgment, decree,
order, license, waiver, variance or other requirement of any court or agency,
board, bureau, body or department of the United States or any state thereof
which is applicable to County or any of the properties or assets of County; (d)
cause any acceleration of maturity of any note, instrument or other obligation
to which County is a party or by which either is bound or with respect to which
it is an obligor or guarantor; or (e) result in the creation or imposition of
any lien, pledge, claim, charge, restriction, equity or encumbrance of any kind
whatsoever upon or give to any other person any interest or right, including any
right of termination or cancellation, in or with respect to any of the business,
operations, properties, assets, agreements or contracts of County.
3.8 FINANCIAL STATEMENTS. County has delivered to RSFC copies
of its statements of financial condition as of December 31, 1994, 1995 and 1996,
and statements of changes in shareholders' equity, statements of cash flows and
statements of operations for each of the years then ended, together with
supporting schedules and notes thereto, audited by Deloitte & Touche LLP (the
"Annual Statements"), and its statements of financial condition as of June 30,
1997 and statements of operations for the six-month period then
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ended (such statements as of and for the period ended June 30, 1997 are
hereinafter referred to as the "Interim Statements"). The Annual Statements and
the Interim Statements (and the CFC Future Financial Statements, to be delivered
to RSFC in accordance with Section 5.8 hereof) including, without limitation,
the allowances for loan losses, fairly present (or will fairly present) the
financial position and results of operations of County as of the respective
dates of such financial statements and for the respective periods then ended in
conformity with GAAP, consistently applied throughout the periods involved;
except, with respect to the Interim Statements, for year-end adjustments and
footnote disclosure.
3.9 LOAN PORTFOLIO. With respect to each loan owned by County
in whole or in part (each, a "Loan"), except as described on Schedule 3.9
hereto:
(a) the note and any related security documents are each
legal, valid and binding obligations of the maker or obligor thereof,
enforceable against such maker or obligor in accordance with their
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditor's rights
generally, and to general equitable principles;
(b) neither County nor, to the knowledge of County, any prior
holder of a Loan has modified the note or any of the related security
documents in any material respect or satisfied, canceled or
subordinated the note or any of the related security documents, except
as otherwise disclosed by documents in the applicable Loan file;
(c) County is the sole holder of legal and beneficial title to
each Loan (or County's applicable participation interest, as
applicable);
(d) the note and the related security documents, copies of
which are included in the Loan files, are true and correct copies of
the documents they purport to be and have not been superseded, amended,
modified, canceled or otherwise changed in any material respect, except
as otherwise disclosed by documents in the applicable Loan file;
(e) to the knowledge of County, there is no pending or
threatened condemnation proceeding or similar proceeding affecting the
property which serves as security for a Loan;
(f) to the knowledge of County, there is no litigation or
proceeding pending or threatened relating to the property which serves
as security for a Loan which would have a material adverse effect upon
the related Loan;
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(g) with respect to a Loan held in the form of a
participation, the participation documentation is legal, valid, binding
and enforceable and County's interest in such Loan created by such
participation would not be a part of the insolvency estate of the Loan
originator or other third party upon the insolvency thereof; and
(h) each Loan secured by a mortgage on residential property
(except for construction loans) was originated by a bank, thrift or
other HUD-approved lender.
3.10 DEPOSITS. Except as set forth in Schedule 3.10, none of
the deposits of County is a "brokered" deposit or subject to any encumbrance,
legal restraint or other legal process.
3.11 NO UNDISCLOSED LIABILITIES, ETC. Since June 30, 1997, CFC
has not incurred or become aware of any material liability or obligation
(absolute, accrued, contingent or otherwise) of any nature which should properly
have been reflected or reserved for in the Interim Statements.
3.12 ABSENCE OF CERTAIN CHANGES. Since June 30, 1997 (except
for the transactions contemplated by this Agreement), neither CFC nor County:
(a) had any change in financial condition, properties,
business or operations which would have a material adverse effect;
(b) suffered any damage, destruction or loss of physical
property or assets (whether or not covered by insurance), in the
aggregate in excess of $100,000 in value;
(c) issued, sold or otherwise disposed of, or agreed to issue,
sell or otherwise dispose of, any of its capital stock, except upon
exercise of outstanding stock options;
(d) incurred or agreed to incur any material indebtedness for
borrowed money, other than in the ordinary course of business;
(e) made or obligated itself to make any capital expenditure
in excess of $100,000 in the aggregate;
(f) waived any material right;
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(g) sold, transferred or otherwise disposed of, or agreed to
sell, transfer or otherwise dispose of, any material assets, or
canceled, or agreed to cancel, any material debts or claims, in each
case, other than in the ordinary course of business;
(h) mortgaged, pledged or subjected to any charge, lien, claim
or encumbrance, or agreed to mortgage, pledge or subject to any charge,
lien, claim or encumbrance, any of its material properties or assets,
other than in the ordinary course of business;
(i) except as provided in Section 5.4(b), declared, set aside
or paid any dividend (whether in cash, property or stock) with respect
to any of its capital stock, or redeemed, purchased or otherwise
acquired, or agreed to redeem, purchase or otherwise acquire, any of
its capital stock;
(j) except as disclosed on Schedule 3.12(j) or contemplated in
Section 5.4(l), increased the compensation or bonuses or special
compensation of any kind of any of its directors, officers, employees
or agents over the rate being paid to them on June 30, 1997 or adopted
or increased any benefits under any insurance, pension or other
employee benefit plan, payment or arrangement made to, for or with any
such director, officer, employee or agent;
(k) made or permitted any amendment or termination of any
material contract, agreement or license to which it is a party, other
than in the ordinary course of business;
(l) made any material change in its accounting methods or
practices with respect to its financial condition, properties, business
or operations;
(m) repaid any outstanding loans, other than repayments in the
ordinary course of business;
(n) entered into any other material transaction not in the
ordinary course of business;
(o) become aware of the need to make additional specific
provisions for reserves for loan losses which would have a material
adverse effect on its financial condition, properties, business or
operations;
(p) hired any new officers, other than in the ordinary course
of business, consistent with past practice;
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(q) entered into any real estate or equipment lease, requiring
aggregate rental payments in excess of $100,000;
(r) entered into any agreement not terminable at will by it
which requires the payment by it of an aggregate amount in excess of
$100,000, other than loan commitments or agreements; or
(s) agreed to or otherwise become obligated to do any of the
foregoing.
3.13 REAL PROPERTIES. Schedule 3.13 hereto describes all real
estate owned or leased by CFC or County, exclusive of "other real estate owned"
acquired by CFC or County as a result of foreclosure or "deed in lieu"
settlements and held by CFC or County for resale. All such real property, if
owned by CFC or County, is owned under good, clear and marketable title, free
and clear of all claims, liens, charges, security interests or encumbrances of
any nature whatsoever except (i) statutory liens securing payments not yet due,
(ii) liens which are incurred in the ordinary course of its business and (iii)
such imperfections or irregularities of title, claims, liens, charges, security
interests or encumbrances as do not materially impair business operations at
such property. CFC or County is the lessee of all leasehold estates described in
Schedule 3.13 and is in possession of the properties purported to be leased
thereunder and each such lease is valid, without material default thereunder by
the lessee or, to lessee's knowledge, the lessor. True and complete copies of
all leases listed in Schedule 3.13 have been delivered by CFC to RSFC.
3.14 TAXES AND FEES. With respect to CFC and each member of
any affiliated group, within the meaning of Section 1504 of the Internal Revenue
Code of 1986, of which CFC is or has been a member (CFC as used hereafter in
this Section 3.14 shall refer to CFC and each such other company) (i) except as
described in Schedule 3.14, all reports, returns, statements (including
estimated reports, returns or statements), and other similar filings required to
be filed on or before the Effective Time by CFC or County (the "Tax Returns")
with respect to any Taxes (as defined below) have been or will be timely filed
with the appropriate governmental agencies in all jurisdictions in which such
Tax Returns are required to be filed, and all such Tax Returns correctly reflect
the liability of CFC for Taxes for the periods, properties, or events covered
thereby; (ii) except as described in Schedule 3.14, all Taxes payable with
respect to the Tax Returns referred to in the preceding clause, and all Taxes
accruable or otherwise attributable to events occurring prior to the close of
business on the last day of the calendar month ending immediately prior to the
Closing Date (the "Test Date"), whether disputed or not, whether or not shown on
any Tax Return, and whether or not currently due or payable, will have been paid
in full prior to the Test Date, or an adequate accrual in accordance with
generally accepted accounting principles will be provided with respect thereto
on the balance sheet dated as of the Test Date; (iii) except as described in
Schedule 3.14, CFC has no knowledge of any unassessed Tax deficiencies or
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of any audits or investigations pending or threatened against CFC with respect
to any Taxes; (iv) no Tax Returns of CFC have been examined by the Internal
Revenue Service for fiscal years ending within the last 15 years; (v) except as
described in Schedule 3.14, there is in effect no extension for the filing of
any Tax Return and CFC has not extended or waived the application of any statute
of limitations of any jurisdiction regarding the assessment or collection of any
Tax; (vi) no claim has ever been made by any Tax authority in a jurisdiction in
which CFC does not file Tax returns that it is or may be subject to taxation by
that jurisdiction; (vii) there are no liens for Taxes upon any asset of CFC
except for liens for current Taxes not yet due; (viii) CFC has timely made all
deposits required by law to be made with respect to employees' withholding and
other payroll, employment, or other withholding taxes, including the portions of
such taxes imposed upon CFC.
3.15 CONTRACTS. Except as set forth on Schedule 3.15 hereto,
neither CFC nor County is a party to any written or oral:
(a) contract or agreement, other than contracts or agreements
made in the ordinary course of business, involving more than $100,000;
(b) contract or agreement with any governmental authority,
other than contracts or agreements made in the ordinary course of
business;
(c) contract or agreement providing for the settlement of any
material action, suit, proceeding or investigation involving it;
(d) employment or consulting agreement of any kind with any
officer, director, employee or consultant, or any policy, program,
agreement or understanding (whether or not in the form of an agreement)
obligating it to pay any amount to any officer or employee on account
of severance or termination of employment;
(e) contract or collective bargaining agreement with any labor
union or representative of its employees; or
(f) contract or agreement which is material to its financial
condition, properties, business or operations.
Except as set forth in Schedule 3.15 hereto, each contract or other agreement
listed on such schedule to which CFC or County is a party is in full force and
effect and is valid and enforceable by it in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and, as to enforceability, to general principles of equity.
Neither CFC nor County is in default in any material respect in the observance
or the performance of any term or obligation to be performed by it under any
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such contract or other agreement. CFC has delivered or made available to RSFC
true and complete copies of all contracts and agreements listed on such
schedule.
3.16 LITIGATION. Except as set forth in Schedule 3.16 hereto
and except for actions in which County is the plaintiff where the amount in
controversy is less than $100,000, there are no actions, suits, proceedings or
investigations before any court or administrative authority in the United
States, any state thereof, or any other jurisdiction, of any kind now pending
or, to the best of the knowledge of CFC, threatened, involving CFC or County or
any of its businesses, operations, properties, assets or liabilities. There is
no arbitration proceeding involving CFC or County which is pending or, to CFC's
knowledge, threatened under any collective bargaining agreement or otherwise.
Except as set forth in Schedule 3.16 hereto, neither CFC, County nor any of
their properties, assets or liabilities, is subject to any judicial or
administrative judgment, order, decree or restraint which adversely affects its
business, operations or financial condition.
3.17 COMPLIANCE WITH LAWS AND REGULATIONS. Except as set forth
as Schedule 3.17, the business and operations of CFC and County have been and
are in all material respects conducted in accordance with all applicable laws,
rules and regulations (including, without limitation, the Equal Credit
Opportunity Act, the Consumer Credit Protection Act, the Truth in Lending Act,
the Community Reinvestment Act and the Real Estate Settlement Procedures Act),
and neither CFC nor County is subject to or, to CFC's knowledge, being
threatened with, any material fine, penalty, liability or legal disability to
its business as the result of its failure to comply with any requirement of any
governmental body or agency having jurisdiction over it, the conduct of its
business, the use of its assets and properties, or any premises occupied by it.
CFC and County have filed all reports and maintained all material records
required to be filed or maintained during the past five fiscal years and the
current fiscal year under applicable rules and regulations of the Federal
Reserve, the OCC and the FDIC. Each such filing contains the information
required to be stated therein and such information was true and correct in all
material respects as of the time such report was filed.
3.18 EMPLOYMENT BENEFIT PLANS AND ARRANGEMENTS; LABOR MATTERS.
(a) Schedule 3.18 hereto lists all employee benefits plans,
contracts, programs or arrangements, including but not limited to
pension, profit-sharing, stock option, stock bonus, deferred
compensation, supplemental retirement, severance, health care,
hospitalization, medical, dental, disability, life insurance and salary
continuation, which are currently maintained, contributed to or
required to be contributed to by CFC or County or which otherwise cover
or provide benefits to any employee or former employee of CFC or County
or any beneficiary thereof (collectively, the "Plans"). CFC has
delivered to RSFC true and complete copies of
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all of the Plans and all material documents relating thereto,
including, but not limited to, summary plan descriptions, annual
reports (IRS Form 5500 Series), actuarial reports, and accountant or
trustee reports, if any, and such reports are accurate in all material
respects and there has been no material change in the financial or
funding status of any such Plan since the dates of the most recent of
such reports. Each Plan has been maintained and administered in all
material respects in accordance with its terms and with all applicable
laws, including the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the Code and the regulations promulgated
thereunder, and in a manner which will not result in any material
charge or assessment against or liability of CFC or County. Except as
set forth on Schedule 3.18 hereto, any Plan that is intended to qualify
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and nothing has occurred since the
date of such determination that could adversely affect such
qualification. The fair market value of the assets of each Plan that is
subject to Title IV equals or exceeds the present value of all benefit
liabilities (as defined in Title IV of ERISA) under the Plan, with such
present value being determined by application of the actuarial methods
and assumptions applied by the Plan's enrolled actuary at the most
recent annual valuation of the Plan. Neither CFC nor County has engaged
in any transaction which may result in imposition on it of any material
excise tax under Sections 4971 through 4980, inclusive, of the Code, or
otherwise incurred a liability for any excise tax, other than excise
taxes which have heretofore been paid or have been accrued, and, in
either case are fully reflected in the Interim Statements. There
does not exist any accumulated material funding deficiency (within the
meaning of Section 302 of ERISA or Section 412 of the Code), whether or
not waived, with respect to any Plan. There are no circumstances
pursuant to which CFC or County could be liable to the Pension Benefit
Guaranty Corporation or a multi-employer plan (as defined in Section
3(37) of ERISA) with respect to any plan not listed on Schedule 3.18.
Except as set forth in Schedule 3.18 hereto, no Plan provides hospital,
medical or health care benefits (other than those mandated by the
Consolidated Omnibus Budget Reconciliation Act of 1986) or any life
insurance or death benefit protection (other than under a Plan that
qualifies under Section 401(a) of the Code) to any retired employees.
(b) As of the date hereof, no association of employees has
petitioned or applied for labor union certification with respect to all
or any part of the business or operations of CFC or County, nor is
there any organized campaign to obtain any such certification; and
there have been no negotiations with any labor union or association of
employees with respect to any future or amended agreements by CFC or
County involving its business or operations, and neither CFC nor County
has made or received any offers or proposals with respect thereto.
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3.19 ACCOUNTING PRACTICES. The books, records and accounts
maintained by CFC and County accurately and fairly reflect in reasonable detail
its businesses, operations, properties, assets and liabilities, and CFC and
County maintain internal accounting controls that provide reasonable assurances
that transactions are executed only with management's authorization and
transactions are recorded as necessary to permit preparation of accurate
financial statements and to maintain accountability for its properties and
assets.
3.20 MINUTE BOOKS. The minute books of CFC and County are in
all material respects complete and accurate records of all meetings and other
corporate actions of their respective shareholders and Board of Directors and
CFC has made available to RSFC for inspection the originals thereof or delivered
true copies thereof.
3.21 INSURANCE. All of the insurance policies in force on the
date hereof insuring CFC and County, and their assets, business, employees,
officers and directors, are described in Schedule 3.21 hereto. CFC has delivered
or made available to RSFC true and complete copies of all such policies.
3.22 AGREEMENTS WITH REGULATORS. Neither CFC nor County is a
party to any written agreement or memorandum of understanding with, nor a party
to any commitment letter or similar undertaking to, nor subject to any order or
directive by, nor a recipient of any extraordinary supervisory letter from, any
Agency which restricts the conduct of its business, or in any manner relates to
its capital adequacy, its credit policies or its management. Neither CFC nor
County has been advised by any Agency or is aware that such Agency is
contemplating issuing or requesting any such agreement, memorandum, commitment,
understanding, order or supervisory letter.
3.23 ENVIRONMENTAL. Except as set forth in Schedule 3.23,
neither CFC nor County is (i) in violation of any law, regulation, order,
permit, license or decree regulating emissions into the environment and the
proper disposal of wastes, petroleum products or other materials; or (ii) liable
or responsible for any cleanup, fines, liability or expense arising under any
environmental law, regulation or order as a result of the disposal of wastes,
petroleum products or other materials in or on its property (whether owned or
leased or in which either has acquired an interest by way of mortgage or
foreclosure) by it, its predecessors in title, or any other person, or in or on
any other property, including property no longer owned, leased or used by it.
There are no asbestos or petroleum products or any hazardous or waste material
of any kind located under, on or in the property (owned or leased) of CFC or
County, and such property has never been used for the handling, treatment,
storage or disposal of any petroleum products or any hazardous or toxic
substances as defined under any applicable state or federal law. RSFC intends to
obtain Phase 1 environmental audits on properties listed on Schedule 3.13. In
the event that such audits (or subsequent Phase 2 assessments) indicate
necessary remediation which would cost
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in excess of $100,000, RSFC, at its option, may, upon notice to CFC, terminate
this Agreement. In the event of such a termination, neither party shall have any
further obligations or liability to the other, notwithstanding Section 10.4
hereof, unless CFC or County had knowledge of the circumstances which indicated
such necessary remediation and failed to disclose such circumstances in Schedule
3.23.
3.24 COMMUNITY REINVESTMENT ACT. Except as set forth on
Schedule 3.24, County has complied in all material respects with its obligations
under the Community Rein vestment Act.
3.25 TRANSACTIONS WITH INSIDERS. Except as set forth on
Schedule 3.25, all of the loans, transactions, agreements and dealings between
County and any "Insider," as defined in Regulation O, comply in all respects
with the provisions of Regulation O.
3.26 FIDELITY BOND. County has obtained all fidelity bonds
that are required by law or regulation. All such fidelity bonds are currently in
force and County has no reason to anticipate that the issuers thereof will fail
to renew them or plan to revoke and/or cancel them.
3.27 PROXY STATEMENT. The proxy statement referred to in
Section 4.9 hereof will not, with respect to CFC and County, contain any untrue
statements of material fact or omit to state any material fact necessary in
order to make the statements made, in the light of the circumstances under which
they were made, not misleading; provided, however, that this Section 3.27 shall
not apply to information included in the proxy statement with respect to RSFC or
Republic, including financial information and statements.
3.28 BROKERS. Except as described in Schedule 3.28, neither
CFC, County nor any director, officer, employer, agent or other representative
of CFC or County, has paid or is obligated to pay to any party any finder's fee,
brokerage commission, fairness opinion fee or like payment in connection with
the transactions contemplated by this Agreement.
3.29 NO UNTRUE STATEMENTS. No statement by CFC or County
contained in this Agreement or any of the Schedules hereto or CFC or County
financial statements referred to herein contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.30 ABSENCE OF REGULATORY COMMUNICATIONS. Except as set forth
in Schedule 3.30, neither CFC nor County is subject to, or has received during
the past three years, any written communication directed specifically to it from
any Agency to which it is subject or pursuant to which such Agency has imposed
or has indicated it may impose any
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material restrictions on the operations of it or the business conducted by it
or in which such Agency has raised a material question concerning the
condition, financial or otherwise, of such company.
3.31 OPINION OF FINANCIAL ADVISOR. CFC has been advised by
Alex Sheshunoff & Co. that the Conversion Rate is fair to the holders of CFC
Common Stock from a financial point of view.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF RSFC AND REPUBLIC
RSFC and Republic hereby represent and warrant to CFC and
County as follows:
4.1 RSFC CORPORATE ORGANIZATION. RSFC is a Florida
corporation, duly organized, validly existing and in good standing under the
laws of the State of Florida. RSFC has the corporate power and authority to
carry on its business and operations as now being conducted and to own and
operate its properties and assets as now owned and being operated by it. RSFC is
qualified or licensed to do business and is in good standing in each
jurisdiction in which it operates, except where the failure to do so will not
have a material adverse effect on RSFC. RSFC is a bank holding company, duly
registered as such and in good standing under the Bank Holding Company Act of
1956, as amended.
4.2 RSFC AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION.
RSFC's Board of Directors has duly authorized the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby. Subject
to approval of the Parent Merger by shareholders of RSFC owning not less than a
majority of the outstanding shares of RSFC Common Stock, this Agreement is a
legal, valid and binding obligation of RSFC, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and except that the availability of equitable
remedies is within the discretion of the appropriate court. The execution,
delivery and performance of this Agreement do not, and the consummation of the
Parent Merger and the Bank Merger will not, (a) violate or conflict with any
provision of the Articles of Incorporation or Bylaws of RSFC, (b) require any
third party consent pursuant to or result in any breach of or default under any
provision of any contract or agreement of any kind to which RSFC is a party or
by which RSFC is bound or to which any property or asset of RSFC is subject, (c)
result in any breach or violation of, or default under, or any event which with
due notice or lapse of time or both would constitute a default under, result in
the termination of, or accelerate the performance required by, or require RSFC
to obtain or make any consent, authorization,
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approval, registration or filing (other than as described in this Agreement),
under any statute, law, bylaw, ordinance, regulation, rule, judgment, decree,
order, license, waiver, variance or other requirement of any court or agency,
board, bureau, body or department of the United States or any state thereof
which is applicable to Republic or any of the properties or assets of RSFC, (d)
cause any acceleration of maturity of any note, instrument or other obligation
to which RSFC is a party or by which it is bound or with respect to which it is
an obligor or guarantor, or (e) result in the creation or imposition of any
lien, pledge, claim, charge, restriction, equity or encumbrance of any kind
whatsoever upon or give to any other person any interest or right, including any
right of termination or cancellation, in or with respect to any of the business,
operations, properties, assets, agreements or contracts of RSFC.
4.3 RSFC CAPITALIZATION; STOCK OWNERSHIP. As of the date
hereof, the authorized capital stock of RSFC consists of 100,000,000 shares of
common stock, par value $.01 per share, of which 16,147,107 shares are issued
and outstanding, and 20,000,000 shares of preferred stock, $10.00 stated value
per share, of which no shares of Series A, no shares of Series B and 1,035,000
shares of Series C are issued and outstanding. All of the issued and outstanding
shares of RSFC Common Stock and preferred stock have been duly authorized and
validly issued and are fully paid and nonassessable, and none of them were
issued in violation of any preemptive or other right. Except as described on
Schedule 4.3, RSFC is not a party to or bound by any contract, agreement or
arrangement to issue, sell or otherwise dispose of or redeem, purchase or
otherwise acquire any of its capital stock and there is no outstanding option,
warrant or other right to subscribe for or purchase, or contract, agreement or
arrangement with respect to, any capital stock of RSFC or any other security
exercisable or convertible into any capital stock of RSFC, or any stock
appreciation rights.
4.4 INVESTMENTS; NO SUBSIDIARY. Except as set forth on
Schedule 4.4, RSFC does not own, directly or indirectly, any shares of capital
stock of any corporation or any equity investment in any partnership,
association or other business organization.
4.5 REPUBLIC CORPORATE ORGANIZATION. Republic is a Florida
state bank, duly organized, validly existing and in good standing under the laws
of the State of Florida. Republic has the corporate power and authority to carry
on its business and operations as now being conducted and to own and operate its
properties and assets as now owned and being operated by it. Republic has
delivered to CFC complete and correct copies of Republic's Articles of
Incorporation and Bylaws, as amended to date, which are in full force and effect
on the date hereof. Republic is qualified or licensed to do business and is in
good standing in each jurisdiction in which it operates, except where the
failure to do so will not have a material adverse effect on Republic.
4.6 REPUBLIC CAPITALIZATION; STOCK OWNERSHIP. As of the date
hereof, the authorized capital stock of Republic consists of 5,000,000 shares of
common stock, par value
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$5.00 per share, of which 1,539,490 shares are issued and outstanding (none of
which are held by Republic as treasury stock), all of which are owned by RSFC or
Governors Bank Corporation (RSFC's wholly owned subsidiary). All of the issued
and outstanding shares of Republic Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable, and none of them were
issued in violation of any preemptive or other right. Republic is not a party to
or bound by any contract, agreement or arrangement to issue, sell or otherwise
dispose of or redeem, purchase or otherwise acquire any of its capital stock and
there is no outstanding option, warrant or other right to subscribe for or
purchase, or contract, agreement or arrangement with respect to, any capital
stock of Republic or any other security exercisable or convertible into any
capital stock of Republic, or any stock appreciation rights.
4.7 REPUBLIC AUTHORIZATION AND ENFORCEABILITY; NO VIOLATION.
Republic's Board of Directors and shareholders have duly authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement is a legal, valid and
binding obligation of Republic, enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and except that the availability of equitable remedies is within the
discretion of the appropriate court. The execution, delivery and performance of
this Agreement do not, and the consummation of the Bank Merger will not, (a)
violate or conflict with any provision of the Articles of Incorporation or
Bylaws of Republic; (b) require any third party consent pursuant to or result in
any breach of or default under any provision of any contract or agreement of any
kind to which Republic is a party or by which Republic is bound or to which any
property or asset of Republic is subject; (c) result in any breach or violation
of, or default under, or any event which with due notice or lapse of time or
both would constitute a default under, result in the termination of, or
accelerate the performance required by, or require Republic to obtain or make
any consent, authorization, approval, registration or filing (other than as
described in this Agreement), under any statute, law, bylaw, ordinance,
regulation, rule, judgment, decree, order, license, waiver, variance or other
requirement of any court or agency, board, bureau, body or department of the
United States or any state thereof which is applicable to Republic or any of the
properties or assets of Republic; (d) cause any acceleration of maturity of any
note, instrument or other obligation to which Republic is a party or by which it
is bound or with respect to which it is an obligor or guarantor; or (e) result
in the creation or imposition of any lien, pledge, claim, charge, restriction,
equity or encumbrance of any kind whatsoever upon or give to any other person
any interest or right, including any right of termination or cancellation, in or
with respect to any of the business, operations, properties, assets, agreements
or contracts of Republic.
4.8 SEC FILINGS. RSFC has heretofore or will deliver to CFC,
copies of RSFC's: (i) Annual Reports on Form 10-K for the fiscal years ended
December 31, 1996
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and 1995; (ii) 1996 Annual Report to Shareholders; (iii) Quarterly Report on
Form 10-Q for the fiscal quarters ended March 31 and June 30, 1997; and (iv) any
reports on Form 8-K filed by RSFC with the SEC since December 31, 1996 and will
continue until the Closing to furnish CFC with copies of such reports. As of the
respective filing and effective dates, (i) such reports complied as to form with
the applicable requirements of the Securities Act of 1933 (the "33 Act") and the
Securities Exchange Act of 1934 (the "34 Act") and the regulations thereunder,
and (ii) none of such reports contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
4.9 REGISTRATION STATEMENT. At the time the Registration
Statement referred to in Section 6.5 hereof becomes effective, the Registration
Statement, including the proxy statement constituting a part thereof, will
comply in all material respects with the requirements of the 33 Act or other
applicable securities law and the rules and regulations thereunder, will not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this Section 4.9 shall not apply to statements included in the proxy
statement made in reliance upon and in conformity with information furnished to
RSFC in writing by CFC or any of its representatives, including financial
information and statements.
4.10 FINANCIAL STATEMENTS. RSFC has delivered to CFC copies of
its statements of financial condition as of March 31, 1994, 1995 and 1996, and
December 31, 1996, and statements of changes in shareholders' equity, statements
of cash flows and statements of operations for each of the years then ended,
together with supporting schedules and notes thereto, audited by Ernst & Young
LLP (the "RSFC Annual Statements"), and its unaudited statements of financial
condition as of June 30, 1997 and statements of operations for the six-month
period then ended (such statements as of and for the period ended June 30, 1997
are hereinafter referred to as the "RSFC Interim Statements"). The RSFC Annual
Statements and the RSFC Interim Statements, including, without limitation, the
allowances for loan losses, fairly present the financial position and results of
operations of RSFC as of the respective dates of such financial statements and
for the respective periods then ended in conformity with GAAP, consistently
applied throughout the periods involved; except, with respect to the RSFC
Interim Statements, for year-end adjustments and footnote disclosure.
4.11 LOAN PORTFOLIO. With respect to each loan owned by
Republic in whole or in part (each, a "Loan"), except as described on Schedule
4.11 hereto:
(a) the note and any related security documents are each
legal, valid and binding obligations of the maker or obligor thereof,
enforceable against such maker
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or obligor in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally, and to general equitable
principles;
(b) neither Republic nor, to the knowledge of Republic, any
prior holder of a Loan has modified the note or any of the related
security documents in any material respect or satisfied, canceled or
subordinated the note or any of the related security documents, except
as otherwise disclosed by documents in the applicable Loan file;
(c) Republic is the sole holder of legal and beneficial title
to each Loan (or Republic's applicable participation interest, as
applicable);
(d) the note and the related security documents, copies of
which are included in the Loan files, are true and correct copies of
the documents they purport to be and have not been superseded, amended,
modified, canceled or otherwise changed in any material respect, except
as otherwise disclosed by documents in the applicable Loan file;
(e) to the knowledge of Republic, there is no pending or
threatened condemnation proceeding or similar proceeding affecting the
property which serves as security for a Loan;
(f) to the knowledge of Republic, there is no litigation or
proceeding pending or threatened, relating to the property which serves
as security for a Loan, which would have a material adverse effect upon
the related Loan;
(g) with respect to a Loan held in the form of a
participation, the participation documentation is legal, valid, binding
and enforceable and Republic's interest in such Loan created by such
participation would not be a part of the insolvency estate of the Loan
originator or other third party upon the insolvency thereof; and
(h) each Loan secured by a mortgage on residential property
(except for construction loans) was originated by a bank, thrift or
other HUD-approved lender.
4.12 DEPOSITS. Except as described on Schedule 4.12 hereto,
none of the deposits of Republic is a "brokered" deposit or subject to any
encumbrance, legal restraint or other legal process.
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4.13 NO UNDISCLOSED LIABILITIES, ETC. Since June 30, 1997,
RSFC has not incurred or become aware of any material liability or obligation
(absolute, accrued, contingent or otherwise) of any nature which should properly
have been reflected or reserved for in the RSFC Interim Statements.
4.14 ABSENCE OF CERTAIN CHANGES. Since June 30, 1997 (except
for the transactions contemplated by this Agreement), neither RSFC nor Republic
has:
(a) had any change in financial condition, properties,
business or operations which would have a material adverse effect;
(b) suffered any damage, destruction or loss of physical
property or assets (whether or not covered by insurance), in the
aggregate in excess of $100,000 in value;
(c) issued, sold or otherwise disposed of, or agreed to issue,
sell or otherwise dispose of, any of its capital stock, except upon
exercise of outstanding stock options;
(d) incurred or agreed to incur any material indebtedness for
borrowed money, other than in the ordinary course of business;
(e) made or obligated itself to make any capital expenditure
in excess of $100,000 in the aggregate;
(f) waived any material right;
(g) sold, transferred or otherwise disposed of, or agreed to
sell, transfer or otherwise dispose of, any material assets, or
canceled, or agreed to cancel, any material debts or claims, in each
case, other than in the ordinary course of business;
(h) mortgaged, pledged or subjected to any charge, lien, claim
or encumbrance, or agreed to mortgage, pledge or subject to any charge,
lien, claim or encumbrance, any of its material properties or assets,
other than in the ordinary course of business;
(i) declared, set aside or paid any dividend (whether in cash,
property or stock) with respect to any of its capital stock, other than
its regular cash dividends, or redeemed, purchased or otherwise
acquired, or agreed to redeem, purchase or otherwise acquire, any of
its capital stock;
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(j) increased the compensation or bonuses or special
compensation of any kind of any of its directors, officers, employees
or agents over the rate being paid to them on June 30, 1997 or adopted
or increased any benefits under any insurance, pension or other
employee benefit plan, payment or arrangement made to, for or with any
such director, officer, employee or agent;
(k) made or permitted any amendment or termination of any
material contract, agreement or license to which it is a party, other
than in the ordinary course of business;
(l) made any material change in its accounting methods or
practices with respect to its financial condition, properties, business
or operations;
(m) repaid any outstanding loans, other than repayments in the
ordinary course of business;
(n) entered into any other material transaction not in the
ordinary course of business;
(o) become aware of the need to make additional specific
provisions for reserves for loan losses which would have a material
adverse effect on its financial condition, properties, business or
operations;
(p) hired any new officers, other than in the ordinary course
of business, consistent with past practice;
(q) entered into any real estate or equipment lease, requiring
aggregate rental payments in excess of $100,000;
(r) entered into any agreement not terminable at will by it
which requires the payment by it of an aggregate amount in excess of
$100,000; or
(s) agreed to or otherwise become obligated to do any of the
foregoing.
4.15 REAL PROPERTIES. Schedule 4.15 hereto describes all real
estate owned or leased by RSFC or Republic, exclusive of "other real estate
owned" acquired by Republic as a result of foreclosure or "deed in lieu"
settlements and held by Republic for resale. All such real property, if owned,
is owned under good, clear and marketable title, free and clear of all claims,
liens, charges, security interests or encumbrances of any nature whatsoever
except (i) statutory liens securing payments not yet due, (ii) liens which are
incurred in the ordinary course of its business and (iii) such imperfections or
irregularities of title, claims,
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liens, charges, security interests or encumbrances as do not materially impair
business operations at such property. RSFC or Republic is the lessee of all
leasehold estates described in Schedule 4.15 and is in possession of the
properties purported to be leased thereunder and each such lease is valid,
without material default thereunder by the lessee or, to lessee's knowledge, the
lessor. True and complete copies of all leases listed in Schedule 4.15 have been
delivered by RSFC to CFC.
4.16 TAXES AND FEES. With respect to RSFC and each member of
any affiliated group, within the meaning of Section 1504 of the Internal Revenue
Code of 1986, of which RSFC is or has been a member (RSFC as used hereafter in
this Section 4.16 shall refer to RSFC and each such other company) (i) except as
described in Schedule 4.16, all reports, returns, statements (including
estimated reports, returns or statements), and other similar filings required to
be filed on or before Effective Time by RSFC or Republic (the "Tax Returns")
with respect to any Taxes (as defined below) have been or will be timely filed
with the appropriate governmental agencies in all jurisdictions in which such
Tax Returns are required to be filed, and all such Tax Returns correctly reflect
the liability of RSFC for Taxes for the periods, properties, or events covered
thereby; (ii) except as described in Schedule 4.16, all Taxes payable with
respect to the Tax Returns referred to in the preceding clause, and all Taxes
accruable or otherwise attributable to events occurring prior to the Test Date,
whether disputed or not, whether or not shown on any Tax Return, and whether or
not currently due or payable, will have been paid in full prior to the Test
Date, or an adequate accrual in accordance with generally accepted accounting
principles will be provided with respect thereto on the balance sheet dated as
of the Test Date; (iii) except as described in Schedule 4.16, RSFC has no
knowledge of any unassessed Tax deficiencies or of any audits or investigations
pending or threatened against RSFC with respect to any Taxes; (iv) the Tax
Returns of RSFC have never been examined by the Internal Revenue Service; (v)
except as described in Schedule 4.16, there is in effect no extension for the
filing of any Tax Return and RSFC has not extended or waived the application of
any statute of limitations of any jurisdiction regarding the assessment or
collection of any Tax; (vi) no claim has ever been made by any Tax authority in
a jurisdiction in which RSFC does not file Tax returns that it is or may be
subject to taxation by that jurisdiction; (vii) there are no liens for Taxes
upon any asset of RSFC except for liens for current Taxes not yet due; (viii)
RSFC has timely made all deposits required by law to be made with respect to
employees' withholding and other payroll, employment, or other withholding
taxes, including the portions of such taxes imposed upon RSFC.
4.17 CONTRACTS. Except as set forth on Schedule 4.17 hereto,
neither RSFC nor Republic is a party to any written or oral:
(a) contract or agreement, other than contracts or agreements
made in the ordinary course of business, involving more than $100,000;
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(b) contract or agreement with any governmental authority,
other than contracts or agreements made in the ordinary course of
business;
(c) contract or agreement providing for the settlement of any
material action, suit, proceeding or investigation involving it;
(d) employment or consulting agreement of any kind with any
officer, director, employee or consultant, or any policy, program,
agreement or understanding (whether or not in the form of an agreement)
obligating it to pay any amount to any officer or employee on account
of severance or termination of employment;
(e) contract or collective bargaining agreement with any labor
union or representative of its employees; or
(f) contract or agreement which is material to its financial
condition, properties, business or operations.
Except as set forth in Schedule 4.17 hereto, each contract or other agreement to
which RSFC or Republic is a party is in full force and effect and is valid and
enforceable by it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and, as to enforceability, to general principles of equity. Neither RSFC nor
Republic is in default in any material respect in the observance or the
performance of any term or obligation to be performed by it under any such
contract or other agreement. RSFC has delivered or made available to CFC true
and complete copies of all contracts and agreements referred to in clauses (a)
through (f) above.
4.18 LITIGATION. Except as set forth in Schedule 4.18 hereto
and except for actions in which Republic is the plaintiff where the amount in
controversy is less than $100,000, there are no actions, suits, proceedings or
investigations before any court or administrative authority in the United
States, any state thereof, or any other jurisdiction, of any kind now pending
or, to the best of the knowledge of RSFC, threatened, involving RSFC or Republic
or any of its businesses, operations, properties, assets or liabilities. There
is no arbitration proceeding involving RSFC or Republic which is pending or, to
RSFC's knowledge, threatened under any collective bargaining agreement or
otherwise. Except as set forth in Schedule 4.18 hereto, neither RSFC, Republic
nor any of their properties, assets or liabilities, is subject to any judicial
or administrative judgment, order, decree or restraint which adversely affects
its business, operations or financial condition.
4.19 COMPLIANCE WITH LAWS AND REGULATIONS. The business and
operations of RSFC and Republic have been and are in all material respects
conducted in accordance with all applicable laws, rules and regulations
(including, without limitation, the Equal Credit
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Opportunity Act, the Consumer Credit Protection Act, the Truth in Lending Act,
the Community Reinvestment Act and the Real Estate Settlement Procedures Act),
and neither RSFC nor Republic is subject to or, to RSFC's knowledge, being
threatened with, any material fine, penalty, liability or legal disability to
its business as the result of its failure to comply with any requirement of any
governmental body or agency having jurisdiction over it, the conduct of its
business, the use of its assets and properties, or any premises occupied by it.
RSFC and Republic have filed all reports and maintained all records required to
be filed or maintained during the past five fiscal years and the current fiscal
year under applicable rules and regulations of the Federal Reserve, the FDIC and
the State of Florida. Each such filing contains the information required to be
stated therein and such information was true and correct in all material
respects as of the time such report was filed.
4.20 EMPLOYMENT BENEFIT PLANS AND ARRANGEMENTS; LABOR MATTERS.
(a) Schedule 4.20 hereto lists all employee benefits plans,
contracts, programs or arrangements, including but not limited to
pension, profit-sharing, stock option, stock bonus, deferred
compensation, supplemental retirement, severance, health care,
hospitalization, medical, dental, disability, life insurance and salary
continuation, which are currently maintained, contributed to or
required to be contributed to by RSFC or Republic or which otherwise
cover or provide benefits to any employee or former employee of RSFC or
Republic or any beneficiary thereof (collectively, the "RSFC Plans").
RSFC has delivered to CFC true and complete copies of all of the RSFC
Plans and all documents relating thereto, including, but not limited
to, summary plan descriptions, annual reports (IRS Form 5500 Series),
actuarial reports, and accountant or trustee reports, if any, and such
reports are accurate in all material respects and there has been no
material change in the financial or funding status of any such RSFC
Plan since the dates of the most recent of such reports. Each RSFC Plan
has been maintained and administered in all material respects in
accordance with its terms and with all applicable laws, including ERISA
and the Code and the regulations promulgated thereunder, and in a
manner which will not result in any material charge or assessment
against or liability of RSFC or Republic. Except as set forth on
Schedule 4.20 hereto, any RSFC Plan that is intended to qualify under
Section 401(a) of the Code has been determined by the Internal Revenue
Service to be so qualified, and nothing has occurred since the date of
such determination that could adversely affect such qualification. The
fair market value of the assets of each RSFC Plan that is subject to
Title IV equals or exceeds the present value of all benefit liabilities
(as defined in Title IV of ERISA) under the RSFC Plan, with such
present value being determined by application of the actuarial methods
and assumptions applied by the Plan's enrolled actuary at the most
recent annual valuation of the RSFC Plan. Neither RSFC nor Republic has
engaged in any transaction which may result in imposition on it of any
material excise tax under
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Sections 4971 through 4980, inclusive, of the Code, or otherwise
incurred a liability for any excise tax, other than excise taxes which
have heretofore been paid or have been accrued, and, in either case are
fully reflected in the RSFC Interim Statements. There does not exist
any accumulated material funding deficiency (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether or not
waived, with respect to any RSFC Plan. There are no circumstances
pursuant to which RSFC or Republic could be liable to the Pension
Benefit Guaranty Corporation or a multi-employer plan (as defined in
Section 3(37) of ERISA) with respect to any plan not listed on Schedule
4.20. Except as set forth in Schedule 4.20 hereto, no RSFC Plan
provides hospital, medical or health care benefits (other than those
mandated by the Consolidated Omnibus Budget Reconciliation Act of 1986)
or any life insurance or death benefit protection (other than under an
RSFC Plan that qualifies under Section 401(a) of the Code) to any
retired employees.
(b) As of the date hereof, no association of employees has
petitioned or applied for labor union certification with respect to all
or any part of the business or operations of Republic nor is there any
organized campaign to obtain any such certification and there have been
no negotiations with any labor union or association of employees with
respect to any future or amended agreements by Republic involving its
business or operations and Republic has not made or received any offers
or proposals with respect thereto.
4.21 ACCOUNTING PRACTICES. The books, records and accounts
maintained by RSFC and Republic accurately and fairly reflect in reasonable
detail its businesses, operations, properties, assets and liabilities, and they
maintain internal accounting controls that provide reasonable assurances that
transactions are executed only with management's authorization and transactions
are recorded as necessary to permit preparation of accurate financial statements
and to maintain accountability for its properties and assets.
4.22 MINUTE BOOKS. The minute books of RSFC and Republic are
in all material respects complete and accurate records of all meetings and other
corporate actions of their respective shareholders and Board of Directors and
RSFC has made available to CFC for inspection the originals thereof or delivered
true copies thereof.
4.23 INSURANCE. All of the insurance policies in force on the
date hereof insuring RSFC or Republic, and their assets, business, employees,
officers and directors, are described in Schedule 4.23 hereto. RSFC has
delivered or made available to CFC true and complete copies of all such
policies.
4.24 AGREEMENTS WITH REGULATORS. Neither RSFC nor Republic is
a party to any written agreement or memorandum of understanding with, nor a
party to any
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commitment letter or similar undertaking to, nor subject to any order or
directive by, nor a recipient of any extraordinary supervisory letter from, any
Agency which restricts the conduct of its business, or in any manner relates to
its capital adequacy, its credit policies or its management. Neither RSFC nor
Republic has been advised by any Agency or is aware that such Agency is
contemplating issuing or requesting any such agreement, memorandum, commitment,
understanding, order or supervisory letter.
4.25 ENVIRONMENTAL. Neither RSFC nor Republic is (i) in
violation of any law, regulation, order, permit, license or decree regulating
emissions into the environment and the proper disposal of wastes, petroleum
products or other materials; or (ii) liable or responsible for any cleanup,
fines, liability or expense arising under any environmental law, regulation or
order as a result of the disposal of wastes, petroleum products or other
materials in or on its property (whether owned or leased or in which either has
acquired an interest by way of mortgage or foreclosure) by it, its predecessors
in title, or any other person, or in or on any other property, including
property no longer owned, leased or used by it. There are no asbestos or
petroleum products or any hazardous or waste material of any kind located under,
on or in the property (owned or leased) of RSFC or Republic, and such property
has never been used for the handling, treatment, storage or disposal of any
petroleum products or any hazardous or toxic substances as defined under any
applicable state or federal law.
4.26 COMMUNITY REINVESTMENT ACT. Except as set forth on
Schedule 4.26 Republic has complied in all material respects with its
obligations under the Community Reinvestment Act.
4.27 TRANSACTIONS WITH INSIDERS. Except as set forth on
Schedule 4.27, all of the loans, transactions, agreements and dealings between
Republic and any "Insider," as defined in Regulation O, comply in all respects
with the provisions of Regulation O.
4.28 FIDELITY BOND. Republic has obtained all fidelity bonds
that are required by law or regulation or that are reasonably necessary for the
protection of Republic. All such fidelity bonds are currently in force and
Republic has no reason to anticipate that the issuers thereof will fail to renew
them or plan to revoke and/or cancel them.
4.29 BROKERS. Except as described in Schedule 4.29, neither
RSFC, Republic nor any director, officer, employer, agent or other
representative of RSFC, has paid or is obligated to pay to any party any
finder's fee, brokerage commission, fairness opinion fee or like payment in
connection with the transactions contemplated by this Agreement.
4.30 NO UNTRUE STATEMENTS. No statement by RSFC or Republic
contained in this Agreement or any of the Schedules hereto or RSFC or Republic
financial statements referred to herein contains or will contain any untrue
statement of a material fact, or omits
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or will omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.31 ABSENCE OF REGULATORY COMMUNICATIONS. Neither RSFC nor
Republic is subject to, or has received during the past three years, any written
communication directed specifically to it from any Agency to which it is subject
or pursuant to which such Agency has imposed or has indicated it may impose any
material restrictions on the operations of it or the business conducted by it or
in which such Agency has raised a material question concerning the condition,
financial or otherwise, of such company.
4.32 OPINION OF FINANCIAL ADVISOR. RSFC has been advised by
Ryan, Beck & Co. that the Conversion Rate is fair to the holders of RSFC Common
Stock from a financial point of view.
ARTICLE V
COVENANTS OF CFC
5.1 ACCESS, INFORMATION AND DOCUMENTS. From the date hereof
until the Effective Time, CFC will give, and will cause its directors, officers,
employees, agents and other representatives to give, to RSFC and to its agents
and representatives (including, but not limited to, its accountants and counsel)
reasonable access to any and all of its properties, assets, books, records and
other documents, to enable RSFC to make such audit, examination and
investigation of the business, operations, properties, assets, liabilities,
books, records and other documents of CFC and County as RSFC may determine, and
will furnish, and will cause its directors, officers, employees, agents and
other representatives to furnish, to RSFC such information and copies of such
documents and records as RSFC shall request, including without limitation files
relating to loans originated or purchased, investments, leases, contracts,
employment records and benefit plans, minutes of the proceedings of the Board of
Directors and any committees thereof, minutes of shareholders' meetings, legal
proceedings, examination reports, correspondence with regulatory authorities and
correspondence with independent auditors. As part of such examination, RSFC may
make such reasonable inquiries of such persons having business or professional
relationships with CFC and County as RSFC shall determine (other than customers
of County, except with the prior permission of CFC), and CFC and County will
authorize, and will cause their directors, officers, employees, agents and other
representatives to authorize, such persons to respond to each inquiry and to
cooperate fully with RSFC in connection therewith. No investigation by RSFC
shall affect the representations and warranties made by CFC and County herein or
result in any waiver or limitation thereof.
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RSFC agrees to keep confidential and not to disclose to any
persons, except its officers, directors, accountants and legal counsel and as
may otherwise be required by law, all confidential information provided to it by
CFC and County in connection with the foregoing examination of CFC and County.
Nothing contained in this Section 5.1 shall be construed to permit or require
any party to take any action, obtain any information or provide access to any
information in violation of applicable law.
5.2 NO OTHER TRANSACTIONS. Except and only to the extent
required by fiduciary obligations, neither CFC, County nor any of their
directors, executive officers, representatives, agents or other persons
controlled by CFC shall, and neither CFC nor County shall permit its directors
and executive officers to, directly or indirectly, encourage or solicit or hold
discussions or negotiations with, or provide any information to, any person,
entity or group (other than RSFC) concerning any merger, sale of substantially
all of the assets, sale of shares of capital stock or similar transactions
involving CFC or County.
5.3 CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE TIME. During
the period from the date of this Agreement to the Effective Time, CFC shall (i)
maintain its existence and good standing under the laws of its organization, and
(ii) conduct its business and engage in transactions only in the ordinary course
and consistent with its past prudent banking practices. In addition, CFC agrees
that from the date hereof to the Effective Time, except as permitted or required
by this Agreement, it will not take any action that would result in any of its
representations or warranties contained in this Agreement not being true and
correct in any material respect at the Effective Time. CFC agrees that it shall
confer with RSFC upon the request of RSFC and will advise RSFC regarding all
significant developments, transactions and proposals relating to its financial
condition, properties, business or operations, and will cause its directors,
officers, employees, agents and other representatives to disclose to RSFC any
and all material changes in, or events which materially affect, its financial
condition, properties, business or operations.
5.4 NEGATIVE COVENANTS. From the date hereof to the Effective
Time, except as permitted or required by this Agreement, neither CFC nor County
will, without the prior consent of RSFC, which consent shall not be unreasonably
withheld:
(a) change any provision of its Articles of Incorporation or
Bylaws, or take any other action with respect thereto;
(b) change the number of shares of its issued capital stock or
issue or grant any option, warrant, call, commitment, subscription,
right to purchase or agreement of any character relating to its
authorized or issued capital stock, or any securities convertible into
shares of such stock, or split, combine or reclassify any shares of its
capital stock, or redeem or otherwise acquire any shares of such
capital stock, or
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declare, set aside or pay any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of
its capital stock, except for quarterly cash dividends in amounts per
share not exceeding the amounts per share of any dividends paid by RSFC
with respect to the same quarter, multiplied by the Conversion Rate;
(c) hire any officer, except in the ordinary course of
business;
(d) grant any severance or termination rights to, or enter
into or amend any written severance or employment agreement with, any
of its directors, officers or employees or adopt any new employee
benefit plan or arrangement of any type;
(e) sell or dispose of any assets or incur any liabilities, in
either case in excess of $100,000 in the aggregate, except in the
ordinary course of business;
(f) make any capital expenditure in excess of $100,000 in the
aggregate;
(g) file any applications or make any contract with respect to
branching or site location or relocation;
(h) make any loan, commitment therefor, or direct investment
in or with respect to any one party or related group of parties or
issue any letter of credit, or any renewal thereof, in a single or
series of transactions in an amount in excess of $1,000,000;
(i) engage in any transactions with any of its directors or
officers;
(j) take any action, except as may be required by law,
regulation or judicial or regulatory order, which could prevent the
Parent Merger or the Bank Merger;
(k) enter into or renew any employment or consulting agreement
or amend or otherwise modify any existing employment or consulting
agreements;
(l) increase the compensation or benefits of any of its
employees, officers or directors or pay any bonuses, directly or
indirectly, to any such persons, except for increases in the ordinary
course of business not to exceed 6% of the aggregate payroll as of June
30, 1997;
(m) enter into, amend or renew any real estate lease;
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(n) enter into any agreement not terminable at will by it
which requires the payment by it of an aggregate amount in excess of
$100,000 (other than loan commitments or agreements);
(o) waive any material right other than in the ordinary course
of business;
(p) incur any material indebtedness for money owed;
(q) mortgage, pledge or subject to any charge, lien, claim or
encumbrance any of its assets;
(r) make any material change in its accounting methods or
practices;
(s) amend or modify any employee retirement plans or increase
the amount of contributions to such plans; or
(t) agree or obligate itself to do any of the foregoing.
5.5 CURRENT INFORMATION. During the period from the date of
this Agreement to the Effective Time, CFC shall promptly advise RSFC in writing
of any information or fact that would make any representation or warranty or any
statement in this Agreement or in the Schedules not true and correct if such
information or fact had been known when the representation, warranty or
statement was made.
5.6 PURSUIT OF APPROVALS. CFC and County will use their best
efforts to obtain all necessary government approvals and any other regulatory
approvals which may be required of CFC and County and to do all other things
which are or may be necessary to consummate the Parent Merger and the Bank
Merger and will cooperate with RSFC and Republic in the preparation of all
applications and regulatory filings and will furnish promptly upon written
request all documents, information, financial statements or other materials as
may be required in order to complete such applications. RSFC will be provided
the opportunity to review and approve in advance all information relating to it
which appears in any filing made with, or written material submitted to any
third party or governmental body in connection with the transactions
contemplated by this Agreement.
5.7 MEETING OF CFC'S SHAREHOLDERS; PROXY STATEMENT. CFC will
take all steps necessary to duly call, give notice of, convene and hold a
meeting of its shareholders, to be held within 45 days of the effectiveness of
the Registration Statement, for the purpose of securing the required approval of
its shareholders of this Agreement, the Parent Merger and
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the transactions contemplated hereby. Subject to applicable fiduciary
obligations, CFC will recommend to its shareholders the approval of this
Agreement, the Parent Merger and the transactions contemplated hereby and use
its best efforts to obtain such approvals. The text of the CFC proxy statement
with respect to such shareholders meeting shall be prepared by RSFC in
connection with the Registration Statement and shall be subject to the prior
approval of CFC.
5.8 CFC FUTURE FINANCIAL STATEMENTS. CFC shall deliver to
RSFC, within 20 days after the end of each calendar month from the month of July
1997 through the Closing Date, its unaudited statements of financial condition
as of the end of such month and its statements of operations for the period from
January 1, 1997 through the month then ended. All of the financial statements
hereinabove referred to in this Section 5.8 are hereinafter referred to as the
"CFC Future Financial Statements." The CFC Future Financial Statements shall be
prepared in accordance with GAAP on a basis consistent with the Interim
Statements. The CFC Future Financial Statements so delivered after the date
hereof shall be accompanied by a certificate of a duly authorized officer
certifying that, to the best of his knowledge, such statements are complete,
true and accurate and that they have been prepared in accordance with GAAP, and
on a basis consistent with the Interim Statements.
5.9 OBSERVER AT MEETINGS. Unless prohibited by law, CFC and
County each agrees to permit the Chairman of the Board and the Executive Vice
President of RSFC or their designees to attend, as observers, all meetings of
their respective shareholders, Board of Directors and committees of the Board of
Directors, including loan committees, which may be held from the date hereof
through the Effective Time. CFC and County shall provide RSFC with the same
notice of all such meetings which is given to shareholders or directors, as the
case may be, and with copies of all materials and documents distributed at such
meetings. Notwithstanding the foregoing, CFC and County may, in their
discretion, exclude RSFC from portions of meetings during which this Agreement
or its interpretation, breach, performance and/or enforcement are reviewed, or
if otherwise required to do so under applicable fiduciary obligations. RSFC
shall maintain the strict confidentiality of all matters observed at such
meetings; provided, however, RSFC may discuss such matters with officers,
directors, legal counsel and advisors of RSFC and Republic and may disclose such
matters publicly if obligated to do so by law.
5.10 POOLING. CFC agrees that it will not knowingly take any
action which would have the effect of jeopardizing the treatment of the Parent
Merger as a "pooling of interests."
5.11 CORAL WAY BRANCH. Notwithstanding anything in this
Agreement to the contrary, County may, at any time in its sole discretion, cease
operations at its Coral Way branch, vacate the premises housing such branch and
take such related actions as it deems appropriate.
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ARTICLE VI
COVENANTS OF RSFC AND REPUBLIC
6.1 ACCESS, INFORMATION AND DOCUMENTS. From the date hereof
until the Effective Time, RSFC and Republic will give, and will cause their
directors, officers, employees, agents and other representatives to give, to CFC
and to its agents and representatives (including, but not limited to, its
accountants and counsel) reasonable access to any and all of its properties,
assets, books, records and other documents, to enable CFC to make such audit,
examination and investigation of the business, operations, properties, assets,
liabilities, books, records and other documents of RSFC and Republic as CFC may
determine, and will furnish, and will cause its directors, officers, employees,
agents and other representatives to furnish, to CFC such information and copies
of such documents and records as CFC shall request, including without limitation
files relating to loans originated or purchased, investments, leases, contracts,
employment records and benefit plans, minutes of the proceedings of the Board of
Directors and any committees thereof, minutes of shareholders' meetings, legal
proceedings, examination reports, correspondence with regu latory authorities
and correspondence with independent auditors. As part of such examination, CFC
may make such reasonable inquiries of such persons having business or
professional relationships with RSFC and Republic as CFC shall determine (other
than customers of Republic, except with the prior permission of RSFC), and RSFC
will authorize, and will cause its directors, officers, employees, agents and
other representatives to authorize, such persons to respond to each inquiry and
to cooperate fully with CFC in connection therewith. No investigation by CFC
shall affect the representations and warranties made by RSFC herein or result in
any waiver or limitation thereof.
CFC agrees to keep confidential and not to disclose to any
persons, except its officers, directors, accountants and legal counsel and as
may otherwise be required by law, all confidential information provided to it by
RSFC and Republic in connection with the foregoing examination of RSFC and
Republic. Nothing contained in this Section 6.1 shall be construed to permit or
require any party to take any action, obtain any information or provide access
to any information in violation of applicable law.
6.2 NO OTHER TRANSACTIONS. Except and only to the extent
required by fiduciary obligations, neither RSFC, Republic nor any of their
directors, executive officers, representatives, agents or other persons
controlled by RSFC or Republic shall, and neither RSFC nor Republic shall permit
its directors and executive officers to, directly or indirectly, encourage or
solicit or hold discussions or negotiations with, or provide any information to,
any person, entity or group (other than CFC) concerning any merger or
acquisition involving RSFC or Republic, other than any merger or acquisition in
which RSFC, Republic or a
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subsidiary of either is the surviving corporation and which has an aggregate
purchase price of $10,000,000 or less (an "Additional Acquisition").
6.3 CONDUCT OF BUSINESS PRIOR TO THE EFFECTIVE TIME. During
the period from the date of this Agreement to the Effective Time, RSFC shall (i)
maintain its existence and good standing under the laws of its organization, and
(ii) conduct its business and engage in transactions only in the ordinary course
and consistent with its past prudent banking practices. In addition, RSFC agrees
that from the date hereof to the Effective Time, except as permitted or required
by this Agreement, it will not take any action that would result in any of its
representations or warranties contained in this Agreement not being true and
correct in any material respect at the Effective Time. RSFC agrees that it shall
confer with CFC upon the request of CFC and will advise CFC regarding all
significant developments, transactions and proposals relating to its financial
condition, properties, business or operations, and will cause its directors,
officers, employees, agents and other representatives to disclose to CFC any and
all material changes in, or events which materially affect, its financial
condition, properties, business or operations.
6.4 NEGATIVE COVENANTS. From the date hereof to the Effective
Time, except as permitted or required by this Agreement, neither RSFC nor
Republic will, without the prior consent of CFC, which consent shall not be
unreasonably withheld:
(a) change any provision of its Articles of Incorporation or
Bylaws, or take any other action with respect thereto;
(b) take any action, except as may be required by law,
regulation or judicial or regulatory order, which could prevent the
Parent Merger or the Bank Merger;
(c) make any material change in its accounting methods or
practices; or
(d) agree or obligate itself to do any of the foregoing.
6.5 CURRENT INFORMATION. During the period from the date of
this Agreement to the Effective Time, RSFC shall promptly advise CFC in writing
of any information or fact that would make any representation or warranty or any
statement in this Agreement or in the Schedules not true and correct if such
information or fact had been known when the representation, warranty or
statement was made.
6.6 PURSUIT OF APPROVALS. RSFC and Republic will each use its
best efforts to promptly prepare applications for and to obtain all necessary
governmental approvals and any other regulatory approvals which may be required
and to do all other things which are or may be necessary to consummate the
Parent Merger and the Bank Merger and will
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cooperate with CFC in the preparation of all applications and will furnish
promptly upon written request all documents, information, financial statements
or other materials as may be required in order to complete such applications.
CFC will be provided the opportunity to review and approve in advance all
information relating to it which appears in any filing made with, or written
material submitted to any third party or governmental body in connection with
the transactions contemplated by this Agreement.
6.7 REGISTRATION STATEMENT; MEETING OF RSFC'S SHAREHOLDERS. As
soon as practicable after the date hereof, RSFC shall prepare and file with the
Securities and Exchange Commission (the "SEC"), and diligently seek
effectiveness of, a Registration Statement on Form S-4 ( the "Registration
Statement") containing the joint proxy state ment/prospectus with respect to the
RSFC and CFC shareholders meetings referred to herein and the RSFC Common Stock
to be issued upon effectiveness of the Parent Merger. CFC shall have the right
to review and approve drafts of the Registration Statement. RSFC will take all
steps necessary duly to call, give notice of, convene and hold a meeting of its
shareholders, to be held within 45 days of the effectiveness of the Registration
Statement, for the purpose of securing the required approval of its shareholders
of this Agreement, the Parent Merger and the transactions contemplated hereby.
Subject to applicable fiduciary obligations, RSFC will recommend to its
shareholders the approval of this Agreement, the Parent Merger and the
transactions contemplated hereby and use its best efforts to obtain such
approvals.
6.8 BOARDS OF DIRECTORS ELECTION. Promptly after the Closing,
RSFC and Republic agree to cause four designees of CFC, who are acceptable to
RSFC and Republic in their sole judgment, to be elected to each of the Boards of
Directors of RSFC and Republic.
6.9 POOLING. RSFC agrees that it will not knowingly take any
action which would have the effect of jeopardizing the treatment of the Parent
Merger as a "pooling of interests."
6.10 COUNTY EMPLOYEES. All employees of County shall, at
Republic's option, become employees of Republic on the Effective Date. All
employees of County who become employees of Republic on the Effective Date shall
be entitled, to the extent permitted by applicable law, to participate in all
benefit plans of Republic to the same extent as Republic's employees, except as
stated otherwise in this Section 6.10. Employees of County on the Effective Date
shall be allowed to participate as of the Effective Date in the medical and
dental benefit plans of Republic, and the time of employment of such employees
who are employed at least 30 hours per week with County, as of the Effective
Date, shall be counted as employment with Republic under such dental and medical
plans of Republic for purposes of calculating any waiting period and preexisting
condition limitations. To the
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extent permitted by applicable law, the period of service with County of all
employees to become employees of Republic on the Effective Date shall be
recognized only for vesting and eligibility purposes under RSFC's and Republic's
current benefit plans, but not for the determination of the amount of benefits
(provided, however, that the period of service with County of each such employee
shall be recognized for purposes of determining the amount of annual paid
vacation time to which the employee is entitled). To the extent that Republic's
benefit plans will not, after the Effective Date, recognize the County
employees' accrued but unused paid vacation, personal leave or sick leave time,
the County employees will be entitled to receive, on or prior to the Effective
Date, cash payments, at their respective compensation rates, for such accrued
but unused time.
6.11 INDEMNIFICATION.
(a) For a period of six years after the Effective Date, RSFC
shall indemnify, defend and hold harmless the present and former
directors, officers, employees and agents of CFC or County (each, an
"Indemnified Party") against all liabilities arising out of actions or
omissions arising out their employment by or service with CFC or
County and occurring at or prior to the Effective Date to the full
extent permitted under Florida law and by RSFC's Articles of
Incorporation and Bylaws as in effect on the date hereof, including
provisions relating to advances of expenses incurred in the defense of
any litigation; provided that no such indemnification shall be made for
actions or omissions which constitute fraud, are intentionally taken or
omitted in bad faith, constitute a knowing breach of this Agreement or
constitute violations of criminal law, unless the Indemnified Party had
no reasonable cause to believe his or her conduct was unlawful.
(b) Any Indemnified Party wishing to claim indemnification
under this Section 6.11, upon learning of any such liability or
litigation, shall promptly notify RSFC thereof (provided, however, that
the failure to so notify shall release RSFC only to the extent it is
actually prejudiced thereby). In the event of any such litigation
(whether arising before or after the Effective Date), (i) RSFC shall
have the right to assume the defense thereof and RSFC shall not be
liable to such Indemnified Party for any legal expenses for other
counsel or any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if RSFC
elects not to assume such defense or counsel for the Indemnified
Parties advises that there are substantive issues which raise conflicts
of interest between RSFC and the Indemnified Parties, the Indemnified
Parties may retain counsel satisfactory to them, and RSFC shall pay all
reasonable fees and expenses of such counsel for the Indemnified
Parties; provided, however, that RSFC shall be obligated pursuant to
this Section 6.11(b) to pay for such additional counsel for Indemnified
Parties in any jurisdiction as counsel for RSFC shall determine is
necessary under law
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and professional ethics; (ii) the Indemnified Parties will cooperate in
the defense of any such litigation, and (iii) RSFC shall not be liable
for any settlement effected without its prior written consent; and
provided, further, that RSFC shall not have any obligation hereunder to
any Indemnified Party when and if a court of competent jurisdiction
shall determine, and such determination shall have become final, that
the indemnification of such Indemnified Party in the manner
contemplated hereby is prohibited by applicable law.
(c) If RSFC or any of its successors or assigns shall
consolidate with or merge into any other person and shall not be the
continuing or surviving person of such consolidation or merger or shall
transfer all or substantially all of its assets to any person, then and
in each case, proper provision shall be made so that the successors and
assigns of RSFC shall assume the obligations set forth in this Section
6.11.
(d) In consideration of the indemnification obligations
provided by RSFC in this Section 6.11 and as a condition precedent
thereto, each director, former director and officer of CFC or County
shall have delivered to RSFC on or prior to the date of this Agreement,
a letter (in form reasonably satisfactory to RSFC) describing all known
claims such directors and officers may have against CFC or County. In
the letter, the director, former director or officer shall: (a)
acknowledge the assumption by RSFC of all liability (to the extent CFC
or County would be so liable) for claims for indemnification arising
under Section 6.11(a) hereof; (b) affirm that he or she is not aware of
any claims he or she might have, against CFC or County; (c) identify
any other facts or circumstances of which he or she is aware and which
he or she reasonably believes could give rise to a claim for
indemnification under Section 6.11(a) hereof; and (d) release as of the
Effective Date any and all claims that he or she may have against any
CFC or County known to him or her which he or she did not so disclose
to RSFC.
(e) CFC hereby represents and warrants to RSFC and Republic
that it has no knowledge of any claim, pending or threatened, or of any
facts or circumstances that it reasonably believes could give rise to
any obligation by RSFC to provide the indemnification required by this
Section 6.11.
6.12 FUTURE FINANCIAL INFORMATION. RSFC shall deliver to CFC,
within 20 days after the end of each calendar month from the month of July 1997
through the Closing Date, its unaudited statements of financial condition as of
the end of such month and its statements of operations for the period from
January 1, 1997 through the month then ended. All of the financial statements
hereinabove referred to in this Section 5.8 are hereinafter referred to as the
"RSFC Future Financial Statements." The RSFC Future Financial
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Statements shall be prepared in accordance with GAAP on a basis consistent with
the Interim Statements. The RSFC Future Financial Statements so delivered after
the date hereof shall be accompanied by a certificate of a duly authorized
officer certifying that, to the best of his knowledge, such statements are
complete, true and accurate and that they have been prepared in accordance with
GAAP, and on a basis consistent with the Interim Statements.
6.13 OBSERVER AT MEETINGS. Unless prohibited by law, RSFC and
Republic agree to permit the Chairman of the Board and the President of CFC or
their designees to attend, as observers, all meetings of their respective
shareholders, Board of Directors and committees of the Board of Directors,
including loan committees, which may be held from the date hereof through the
Effective Time. RSFC and Republic shall provide CFC with the same notice of all
such meetings which is given to shareholders or directors, as the case may be,
and with copies of all materials and documents distributed at such meetings.
Notwithstanding the foregoing, RSFC or Republic may, in its discretion, exclude
CFC from portions of meetings during which this Agreement or its interpretation,
breach, performance and/or enforcement are reviewed, or if otherwise required to
do so under applicable fiduciary obligations. CFC shall maintain the strict
confidentiality of all matters observed at such meetings; provided, however, CFC
may discuss such matters with officers, directors, legal counsel and advisors of
CFC and may disclose such matters publicly if obligated to do so by law.
6.14 POOLING AND SECURITIES LAW MATTERS. In order to
facilitate to the fullest extent possible any future sale of shares of RSFC
Common Stock received by shareholders of CFC in connection with the Parent
Merger, RSFC agrees as follows:
(a) within 30 days of the end of the first calendar month
after the month which includes the Effective Date, RSFC shall file with
the SEC a report on Form 8-K reporting at least 30 days of operating
results of RSFC as the corporation surviving the Parent Merger; and
(b) RSFC shall timely file any annual, quarterly and other
reports required under the 34 Act in order to permit any of the current
shareholders of CFC to sell their RSFC Common Stock following the
Effective Date pursuant to Rule 144 promulgated under the 33 Act ("Rule
144"). Assuming that any such shareholder complies with the
requirements of Rule 144, RSFC agrees to promptly after the request of
the shareholder, take such action as may be reasonably necessary to
permit the shareholder to sell his or her shares of RSFC Common Stock
under Rule 144, including, without limitation, causing counsel for RSFC
to issue the necessary legal opinion to RSFC's transfer agent.
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6.15 REGISTRATION RIGHTS.
(a) After the report on Form 8-K referred to in Section 6.14
has been filed, any Qualifying Affiliate shall have the right to
require RSFC, at RSFC's expense, to register his or her shares of RSFC
Common Stock for resale on Form S-3 under the 33 Act (or such other
form for which RSFC then qualifies if Form S-3 is then not available
for use by RSFC). RSFC, upon receipt of notice from any such Qualifying
Affiliate requiring registration, shall so register the shares. A
"Qualifying Affiliate" shall mean any Affiliate of CFC (or entity
controlled by such affiliate or any pledgee holding at least 200,000
shares of a Qualifying Affiliate's shares as collateral for a
loan) for purposes of Rule 145 of the 33 Act who, at the time of such
notice to RSFC, owns RSFC shares in an aggregate amount in excess of
200,000 shares.
(b) The registration expenses to be paid by RSFC shall mean
all expenses incident to RSFC's performance of or compliance with this
Section 6.15, including, but not limited to, all SEC and NASD
registration and filing fees and expenses, fees and expenses of
compliance with state securities and blue sky laws (including, without
limitation, reasonable fees and disbursements of counsel for RSFC in
connection with blue sky qualifications), printing expenses, messenger
and delivery expenses, fees and disbursements of counsel for RSFC and
its independent certified public accountants (including the expenses of
any annual audit, special and "cold comfort" letters required by or
incident to such performance and compliance), and fees and expenses of
other persons retained by RSFC.
(c) RSFC shall prepare and file with the SEC, within 45 days
after receipt of notice from any Qualifying Affiliate referenced in
subsection (a) above, a registration statement on Form S-3 (or such
other form for which RSFC then qualifies if Form S-3 is then not
available for use by RSFC).
(d) RSFC shall prepare and file with the SEC such amendments
and supplements to such registration statement and prospectus as may be
necessary or advisable to keep such registration statement effective
until all of the shares of Qualifying Affiliate covered by such
registration statement have been sold or one year from the effective
date of such registration.
(e) RSFC shall furnish to any Qualifying Affiliate whose
shares are covered by such registration statement such number of copies
of such registration statement, each amended and supplemented thereto
(in each case including all exhibits thereto), the prospectus included
in such registration statement (including each preliminary prospectus),
in conformity with the requirements of the 33 Act, and such other
documents as the Qualifying Affiliate may reasonably request.
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(f) RSFC shall register or qualify the shares of any
Qualifying Affiliate who has provided notice to RSFC under subsection
(a) above, under such other securities or blue sky laws of such
jurisdiction as the Qualifying Affiliate requests and do any and all
other acts and things which may be reasonably necessary to consummate
the disposition of such shares in such jurisdictions.
(g) RSFC shall immediately notify a Qualifying Affiliate whose
shares are covered by a registration statement filed by RSFC hereunder
of the happening of any event which comes to RSFC's attention if as a
result of such event the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and RSFC will promptly
prepare and furnish to such Qualifying Affiliate a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of the registered shares, such prospectus will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(h) RSFC will use its best efforts to obtain a "cold comfort"
letter from its independent public accountants in customary form
covering such matters of the type customary covered by "cold comfort"
letters as the Qualifying Affiliate reasonably requests.
(i) RSFC agrees to indemnify and hold harmless, to the fullest
extent permitted by law, any Qualifying Affiliate whose shares are
covered by any registration filed by RSFC under this Section 6.15 (the
"Indemnitee"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including any amounts paid
in any settlement effected with RSFC's consent) (each a "Loss") to
which such Indemnitee may become subject under the 33 Act, state
securities or blue sky laws, common law or otherwise, insofar as such
Losses arise out of or are based upon
(i) any untrue statement or alleged untrue statement
of any material fact contained in any registration statement
under which such securities were registered under the 33 Act,
any preliminary, final or summary prospectus contained therein
or any amendment or supplement thereto (other than with
respect to information provided by the Indemnitee);
(ii) any violation by RSFC of any federal, state or
common law rule or regulation applicable to it and relating to
action required of or inaction by it in connection with any
such registration, and RSFC will reimburse such
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Indemnitee for any legal or other expenses reasonably incurred
by it in connection with investigating or defending such Loss.
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ARTICLE VII
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF RSFC, REPUBLIC, CFC AND COUNTY
The obligations of RSFC, Republic, CFC and County to effect
the Parent Merger and the Bank Merger are subject to the fulfillment of each of
the following conditions prior to or at the Effective Time, or waiver thereof by
all four parties:
7.1 GOVERNMENT APPROVALS. (a) The receipt of all government
approvals required to be received to consummate the Parent Merger and the Bank
Merger, including the SEC ordering effective the Registration Statement, shall
have been received, without the imposition of conditions which would, in the
reasonable determination of RSFC or CFC, (i) have a material adverse effect on
the financial condition, properties, business or operations of RSFC or Republic
upon completion of the Parent Merger and the Bank Merger, or (ii) otherwise
materially impair the value of the transactions contemplated hereby; (b) such
government approvals shall remain in effect; (c) all applicable statutory
waiting or notice periods with respect to such government approvals shall have
expired; and (d) all conditions and requirements prescribed by law or by such
government approvals shall have been satisfied to the extent required prior to
the Effective Time.
7.2 SHAREHOLDER APPROVAL. At the respective shareholders
meetings, the Parent Merger shall have received the approval of holders of a
majority of the outstanding shares of each of RSFC Common Stock and of CFC
Common Stock.
7.3 NO LITIGATION. No order, judgment or decree shall be
outstanding against a party hereto or a third party that would have the effect
of preventing consummation of the Parent Merger or the Bank Merger; no suit,
action or other proceeding shall be pending or, to the knowledge of either party
hereto, threatened by any governmental body in which it is sought to restrain or
prohibit the Parent Merger or the Bank Merger; and no suit, action or other
proceeding shall be pending before any court or governmental agency in which it
is sought to restrain or prohibit the Parent Merger or the Bank Merger or obtain
other substantial monetary or other relief against one or more of the parties
hereto in connection with this Agreement and which RSFC or CFC determines in
good faith, based upon the advice of their respective counsel, makes it
inadvisable to proceed with either Merger because any such suit, action or
proceeding has a significant potential to be resolved in such a way as to
deprive the party electing not to proceed or its shareholders of any of the
material benefits to it or them of either Merger or to have a material adverse
effect on the business or financial condition of RSFC or CFC.
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ARTICLE VIII
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF CFC AND COUNTY
The obligation of CFC and County to effect the Parent Merger
and the Bank Merger is subject to the fulfillment of the following condition
prior to or at the Effective Time, or waiver thereof by CFC and County:
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The obligations
of RSFC or Republic required to be performed by it at or prior to the Effective
Time pursuant to the terms of this Agreement shall have been duly performed and
complied with in all material respects. The representations and warranties of
RSFC or Republic contained in this Agreement 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 at and as of the Effective Time, except for those representations
and warranties specifically relating to a time or times other than the Effective
Time which shall be true and correct in all material respects at such time or
times and except for changes permitted by this Agreement with the same force and
effect as if made at and as of the Effective Time.
8.2 MATERIAL CHANGE. There shall not have occurred a material
adverse change in RSFC, its business, financial condition or prospects, taken as
a whole, since June 30, 1997.
8.3 ACCOUNTANTS' COMFORT LETTER. CFC and County shall have
received the letter of Ernst & Young, dated the Closing Date, to the effect
that, based on agreed-upon procedures, nothing has come to their attention which
would cause them to believe (i) that the financial condition of RSFC as of the
calendar month ended prior to the Closing Date is not as reported by RSFC or
(ii) that the accounting treatment of the Parent Merger would not be a "pooling
of interests" in accordance with GAAP.
8.4 OFFICERS' CERTIFICATES. RSFC and Republic shall have
furnished CFC with such certificates of its officers or others and such other
documents to evidence the fulfillment of the conditions set forth in this
Article VIII as CFC may reasonably request.
8.5 CONSENTS. RSFC and Republic shall have received all
necessary consents to the transactions contemplated herein required by any
agreement material to the operation or conduct of business of RSFC or Republic.
8.6 TAX OPINION. RSFC and CFC shall have received the opinion
of Morgan, Lewis & Bockius LLP to the effect that the Parent Merger will be
treated for federal income tax purposes as a reorganization within the meaning
of Section 368(a) of the Code
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and that RSFC, Republic and CFC will each be a party to such reorganization
within the meaning of Section 368(a) of the Code.
8.7 FAIRNESS OPINION. As of a date within five days prior to
the date on which the Registration Statement is filed by RSFC with the SEC, CFC
shall have received in writing the opinion referred to in Section 3.31 hereof.
ARTICLE IX
CONDITIONS PRECEDENT TO
THE OBLIGATIONS OF RSFC AND REPUBLIC
The obligation of RSFC and Republic to effect the Parent
Merger and the Bank Merger is subject to the fulfillment of each of the
following conditions prior to or at the Effective Time, or waiver thereof by
RSFC and Republic:
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The obligations
of CFC and County required to be performed by it at or prior to the Effective
Time pursuant to the terms of this Agreement shall have been duly performed and
complied with in all material respects. The representations and warranties of
CFC and County contained in this Agreement 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 at and as of the Effective Time, except for those representations
and warranties specifically relating to a time or times other than the Effective
Time which shall be true and correct in all material respects at such time or
times and except for changes permitted by this Agreement with the same force and
effect as if made at and as of the Effective Time.
9.2 MATERIAL CHANGE. There shall not have occurred a material
adverse change in CFC, its business, financial condition or prospects, taken as
a whole, since June 30, 1997, including but not limited to any such change
arising from or relating to the lawsuit styled DENNIS BASILE AND JAMES F.
THERIAC III, AS CO-RECEIVERS FOR FLORIDA HOME FINDERS, INC. AND FLORIDA HOME
FINDERS REALTY, INC. V. COUNTY NATIONAL BANK OF SOUTH FLORIDA, or any other
lawsuit filed with respect to the same facts.
9.3 FINANCIAL CONDITIONS. The interim consolidated balance
sheet of CFC for the calendar month end immediately prior to the Closing Date,
and as of the Closing Date, shall reflect total deposits of not less than
$205,000,000, total loans of not less than $130,000,000, Tangible Equity (as
defined in Section 11.1 hereof) of not less than $23,000,000, non-performing
assets of not more than $4,250,000 and an allowance for loan losses of not less
than the greater of 1.4% of total loans or $2,000,000. For purposes of this
Section 9.3, legal fees paid by CFC or County in connection with this Agreement
and the
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transactions contemplated hereby which have been expensed may be added back to
Tangible Equity in an amount up to 50% of the first $200,000 thereof.
9.4 DEMANDS FOR APPRAISAL. The holders of not more than 10% of
the outstanding shares of CFC Common Stock shall have duly delivered proper
demands stating an intention to demand appraisal of and payment for their shares
in accordance with Section 607.1320 of the Florida Business Corporation Act.
9.5 ACCOUNTANTS' COMFORT LETTER. RSFC and Republic shall have
received the letter of Deloitte & Touche LLP dated the Closing Date, to the
effect that, based on agreed-upon procedures, nothing has come to their
attention which would cause them to believe that the total assets, total
deposits, total loans, Tangible Equity, classified assets and non-performing
assets of CFC as of the calendar month ended prior to the Closing Date are not
as reported by CFC.
9.6 OFFICERS' CERTIFICATES. CFC shall have furnished RSFC and
Republic with such certificates of its officers or others and such other
documents to evidence the fulfillment of the conditions set forth in this
Article IX as RSFC and Republic may reasonably request, including certification
of the names, addresses and numbers of shares of CFC Common Stock held by CFC
shareholders of record as of the Closing.
9.7 CONSENTS. Republic and RSFC shall have received all
necessary consents to the transactions contemplated herein required by any
agreement material to the operation or conduct of business of CFC.
9.8 EMPLOYMENT AGREEMENTS. The Employment Agreements between
Republic and George M. Apelian and Richard Kuci, entered into on the date hereof
and effective at the Effective Time, shall remain in full force and effect.
9.9 TAX OPINION. RSFC shall have received the opinion of
Morgan, Lewis & Bockius LLP to the effect that the Parent Merger will be treated
for federal income tax purposes as a reorganization within the meaning of
Section 368(a) of the Code and that RSFC, Republic and CFC will each be a party
to such reorganization within the meaning of Section 368(a) of the Code.
9.10 CFC AFFILIATE LETTERS. RSFC shall have received from each
director of CFC and any other person which would be an "affiliate" of CFC for
purposes of Rule 145 under the 33 Act a duly executed letter agreement, in form
and substance acceptable to RSFC, with regard to their Rule 145 and "pooling"
obligations.
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<PAGE>
9.11 FAIRNESS OPINION. Prior to the date on which the
Registration Statement is filed by RSFC with the SEC, RSFC shall have received
in writing the opinion referred to in Section 4.33 hereof.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated at any time prior to the Effective Time (whether before or after
approval of the Parent Merger by RSFC's or CFC's shareholders) by mutual written
consent of RSFC and CFC.
10.2 TERMINATION BY CFC. CFC may terminate this Agreement by
written notice to RSFC, at any time prior to the Effective Time, whether before
or after approval by the shareholders of CFC, if (a) any event occurs such that
a material condition set forth in Articles VII or VIII hereof which must be
fulfilled before CFC is obligated to consummate the Parent Merger cannot be
fulfilled (other than by reason of CFC's failure to comply with its obligations
hereunder) and nonfulfillment is not waived, expressly or by implication, by
CFC; (b) there shall have been a material default under or a material breach of
RSFC or Republic's covenants hereunder; (c) there shall have been a material
default under or a material breach of RSFC's or Republic's representations and
warranties hereunder; (d) any event occurs which, in the opinion of Ernst &
Young LLP, would disqualify the Parent Merger from being treated as a "pooling
of interests"; (e) the shareholders of either CFC or RSFC shall fail to approve
the Parent Merger at their respective shareholders meetings held to consider the
Parent Merger; or (f) in accordance with the provisions of Section 1.3 hereof.
CFC may also terminate this Agreement at any time after January 31, 1998, if all
the conditions precedent to its obligations to effect the Parent Merger shall
not have been fulfilled by reason other than CFC's failure to comply with its
obligations hereunder and the Parent Merger shall not have become effective on
or prior to such date.
10.3 TERMINATION BY RSFC. RSFC may terminate this Agreement by
written notice to CFC at any time prior to the Effective Time, whether before or
after approval by the shareholders of CFC, if (a) any event occurs such that a
condition set forth in Articles VII or IX hereof which must be fulfilled before
RSFC is obligated to consummate the Parent Merger or cannot be fulfilled (other
than by reason of RSFC's or Republic's failure to comply with its obligations
hereunder) and nonfulfillment is not waived by RSFC; (b) there shall have been a
material default under or a material breach of CFC's covenants hereunder; (c)
there shall have been a material default under or material breach of CFC's
representations and warranties hereunder; (d) any event occurs which, in the
opinion or Ernst & Young LLP, would disqualify the Parent Merger from being
treated as a "pooling of interests"; (e) the shareholders of either CFC or RSFC
shall fail to approve the Parent Merger at their
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respective shareholders meetings held to consider the Parent Merger; or (f) in
accordance with the provisions of Section 3.23 hereof. RSFC may also terminate
this Agreement at any time after January 31, 1998, if all the conditions
precedent to their obligations to effect the Parent Merger shall not have been
fulfilled by reason other than RSFC's or Republic's failure to comply with its
obligations hereunder and the Parent Merger shall not have become effective on
or prior to such date.
10.4 EFFECT OF TERMINATION. If this Agreement is terminated,
this Agreement, except for this Section 10.4 and Section 10.5, which shall
remain in full force and effect, shall no longer be of any force or effect and
there shall be no liability hereunder on the part of any party or its respective
directors, officers or shareholders; provided that (i) if such termination
results from breaches by CFC of any representation, warranty or covenant
hereunder, then CFC shall pay all of the reasonable fees and expenses incurred
by RSFC and Republic in connection with this Agreement and the transactions
contemplated hereby and (ii) if such termination results from breaches by RSFC
or Republic of any representation or warranty or covenant hereunder, then RSFC
and Republic shall pay all of the reasonable fees and expenses of CFC and County
in connection with this Agreement and the transactions contemplated hereby.
10.5 ALTERNATE CFC OR COUNTY TRANSACTION. In addition to any
payment required by Section 10.4 hereof, in the event that this Agreement is
terminated as a result of CFC or County or the holders of at least a majority of
the shares of CFC Common Stock entering into an agreement with respect to the
merger of CFC or County with a party other than RSFC or Republic or the
acquisition of a majority of the outstanding shares of CFC Common Stock or of
County Common Stock by any party other than RSFC, or is terminated in
anticipation of any such agreement or acquisition, then, in either event, CFC
shall immediately pay RSFC, by wire transfer, $1,500,000 in full satisfaction of
RSFC's losses and damages resulting from such termination. CFC agrees that
$1,500,000 is reasonable under the circumstances, that it would be impossible to
exactly determine RSFC's actual damages as a result of such a termination and
that RSFC's actual damages resulting from the loss of the transaction are in
excess of $1,500,000.
10.6 ALTERNATE RSFC OR REPUBLIC TRANSACTION. In addition to
any payment required by Section 10.4 hereof, in the event that this Agreement is
terminated as a result of RSFC or Republic or the holders of at least a majority
of the shares of RSFC Common Stock entering into an agreement with respect to
the merger of RSFC or Republic with a party other than CFC or County or the
acquisition of a majority of the outstanding shares of RSFC Common Stock or of
Republic Common Stock by any party other than CFC, or is terminated in
anticipation of any such agreement or acquisition, then, in either event, RSFC
shall immediately pay CFC, by wire transfer, $500,000 in full satisfaction of
CFC's losses and damages resulting from such termination. RSFC agrees that
$500,000 is reasonable under
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<PAGE>
the circumstances, that it would be impossible to exactly determine CFC's actual
damages as a result of such a termination and that CFC's actual damages
resulting from the loss of the transaction are in excess of $500,000.
10.7 EXTENSION OR WAIVER. At any time prior to the Effective
Time, whether before or after shareholder approval, either party may (a) extend
the time for the performance of any of the obligations or other acts of the
other party hereto, (b) waive any inaccuracies in the representations and
warranties of the other party hereto contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any of the agreements or
conditions of the other party hereto contained herein. Any agreement on the part
of any party hereto for any such extension or waiver shall only be valid if set
forth in a writing signed on behalf of such party.
ARTICLE XI
MISCELLANEOUS
11.1 CERTAIN TERMS.
(a) Unless otherwise defined herein, all accounting terms used
herein shall have the meanings ascribed to them under generally
accepted accounting principles ("GAAP"), as adjusted by FDIC or OCC
regulations and practice.
(b) "Agency" shall mean each of the United States Department
of Justice, the Board of the Governors of the Federal Reserve System,
the FDIC, the OCC, all state regulatory agencies having jurisdiction
over the parties, HUD, the VA, the FHA, the GNMA, the FNMA, the FHLMC
and the SEC.
(c) "Non-performing assets" shall mean loans which are past
due at least 90 days or in material default for reasons other than late
payment or non-payment, Other Real Estate Owned, any other repossessed
assets and any other loans off accrual for any reason.
(d) "Tangible Equity" shall have the meaning set forth in 12
C.F.R. ss.325.2(s).
(e) "Taxes" shall mean any taxes, duties, assessments, fees,
levies or similar governmental charges, together with any interest,
penalties and additions to tax, imposed by any taxing authority,
wherever located (I.E. whether federal, state, local, municipal, or
foreign), including, without limitation, all net income, gross income,
gross receipts, net receipts, sales, use, transfer, franchise,
privilege, profits,
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<PAGE>
social security, disability, withholding, payroll, unemployment,
employment, excise, severance, property, windfall profits, value added,
AD VALOREM, occupation or any other similar governmental charge or
imposition.
11.2 EXPENSES. Except as provided in Section 10.4 hereof, each
of the parties will pay all of its own legal, accounting and other expenses
incurred in the preparation of this Agreement and the performance of the terms
and provisions of this Agreement.
11.3 LEGAL FEES. In the event of litigation between any of the
parties to this Agreement with respect to enforcement of the provisions hereof,
the prevailing party in such litigation shall be entitled to recover its legal
fees and expenses from the other party to such litigation.
11.4 ENTIRE AGREEMENT; AMENDMENT; WAIVER. Except for the
respective confidentiality agreements signed by the parties, this Agreement
supersedes all previous arrangements or understandings, whether written or oral,
and contains the entire agreement of the parties, with respect to the subject
matter hereof. This Agreement may be modified, varied or otherwise amended only
by a writing executed on behalf of each of the parties hereto. No waiver of any
provision of this Agreement shall be valid unless in writing and signed by the
party against whom enforcement of such waiver is sought. No waiver, course of
dealing, delay in acting or other purported waiver by any party of compliance
with any provision of this Agreement shall be construed as a continuing waiver,
or as a waiver of any subsequent breach, of any such provision or of any rights
or remedies with respect thereto.
11.5 NOTICES. Any notice, request, election, or other
communication required or permitted to be given by any party under any provision
of this Agreement shall be in writing and shall be deemed to have been duly
given if delivered in person, by overnight courier or by facsimile transmission,
to the following address, or to such other address as any party shall designate
upon written notice to the other party pursuant to this Section 11.5:
If to RSFC or Republic:
Republic Security Bank
4400 Congress Avenue
West Palm Beach, Florida 33407
Facsimile No.: 561-881-9225
Attn: Rudy E. Schupp, President
and Chairman of the Board
With a copy to:
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<PAGE>
John S. Fletcher, Esq.
Morgan, Lewis & Bockius LLP
5300 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2339
Facsimile No.: 305-579-0321
If to CFC or County:
County National Bank of South Florida
801 N.E. 167th Street
North Miami Beach, Florida 33162
Facsimile No.: 305-652-2539
Attn: George M. Apelian,
President
With a copy to:
Bowman Brown, Esq.
Shutts & Bowen LLP
201 South Biscayne Boulevard
Miami, Florida 33131
Facsimile No.: 305-381-9982
11.7 RIGHTS UNDER THIS AGREEMENT; NONASSIGNABILITY. This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, but shall not be assignable by any party. Nothing
contained in this Agreement is intended to confer upon any person, other than
the parties to this Agreement and their respective successors, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
11.8 FORM OF THIS AGREEMENT. Captions to the various
provisions in this Agreement are for the convenience of the reader only and
shall not be construed as affecting the meaning or interpretation of any
provision of this Agreement. Terms used in the singular shall be read in the
plural, and vice versa, and terms used in the masculine gender shall be read in
the feminine or neuter gender, when the context so requires. This Agreement may
be executed in several counterparts, each of which shall be deemed an original,
but together shall constitute one and the same instrument.
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<PAGE>
11.9 GOVERNING LAW. This Agreement has been entered into
under, and shall be construed and enforced in accordance with, the laws of the
State of Florida.
11.10 PUBLIC ANNOUNCEMENTS. RSFC and CFC shall each approve in
advance the substance of and cooperate with each other in the development and
distribution of all news releases and other public information disclosures with
respect to this Agreement or any of the transactions contemplated hereby, except
as may be otherwise required by law or regulation.
11.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the several parties hereto on separate
counterparts, each of which when so executed shall be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
REPUBLIC SECURITY FINANCIAL
CORPORATION
By /s/ Rudy E. Schupp
------------------------------------------
Rudy E. Schupp,
President and Chairman of the Board
[SEAL]
ATTEST:
/s/ Richard J. Haskins
- ---------------------------------
Richard J. Haskins,
Assistant Secretary
REPUBLIC SECURITY BANK
By /s/ Rudy E. Schupp
------------------------------------------
Rudy E. Schupp,
President and Chairman of the Board
[SEAL]
ATTEST:
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<PAGE>
/s/ Richard J. Haskins
- --------------------------------
Richard J. Haskins,
Assistant Secretary
COUNTY FINANCIAL CORPORATION
By /s/ George M. Apelian
-------------------------------------
George M. Apelian,
President
[SEAL]
ATTEST:
/s/ Eileen Salsano
- -------------------------------------
Secretary
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<PAGE>
COUNTY NATIONAL BANK OF
SOUTH FLORIDA
By /s/ George M. Apelian
------------------------------------------
George M. Apelian,
President
[SEAL]
ATTEST:
/s/ Eileen Salsano
- -----------------------------------
Secretary
-56-
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