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Exhibit 1
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
FBOP CORPORATION
OR ITS AFFILIATE(s)
AND
TRUSTEES OF
THE ESTATE OF BERNICE PAUAHI BISHOP
DATED AS OF NOVEMBER 1, 2000
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TABLE OF CONTENTS
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ARTICLE I
PURCHASE AND SALE................................................................ 1
1.1 Purchase and Sale......................................................... 1
1.2 Delivery of Shares........................................................ 1
1.3 Assignment of Rights...................................................... 1
1.4 Purchase Price............................................................ 2
ARTICLE II
CLOSING.......................................................................... 2
2.1 Closing................................................................... 2
2.2 Extension of Closing Date................................................. 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER..................................... 2
3.1 Organization and Standing of Seller....................................... 2
3.2 Due Authorization......................................................... 3
3.3 Consents and Approvals.................................................... 3
3.4 Defaults and Conflicts.................................................... 3
3.5 Share Ownership........................................................... 3
3.6 Related Party Transactions................................................ 4
3.7 Information for Regulatory Approvals...................................... 4
3.8 Finders and Investment Bankers............................................ 4
3.9 Disclosure................................................................ 4
3.10 No Conflict of Interest................................................... 5
3.11 Goodwill Litigation....................................................... 5
3.12 Agreements................................................................ 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER...................................... 6
4.1 Organization of Purchaser................................................. 6
4.2 Authorization............................................................. 6
4.3 Consents and Approvals.................................................... 6
4.4 Defaults and Conflicts.................................................... 6
4.5 Finders and Investment Bankers............................................ 6
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ARTICLE V
INFORMATION...................................................................... 7
ARTICLE VI
COVENANTS OF SELLER.............................................................. 7
6.1 Exclusivity............................................................... 7
6.2 Actions of Seller......................................................... 8
6.3 Notice.................................................................... 8
6.4 Supplemental Information; Disclosure Supplements.......................... 8
ARTICLE VI-A
COVENANTS OF PURCHASER........................................................... 8
6.A.1 Limitation on Additional Purchases........................................ 8
6.A.2 Share of Profits.......................................................... 8
6.A.3 Supplemental Information.................................................. 9
6.A.4 Application............................................................... 9
ARTICLE VII
COOPERATION...................................................................... 9
7.1 Reasonable Efforts........................................................ 9
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER............................. 9
8.1 Representations, Warranties and Covenants................................. 9
8.2 Adverse Changes........................................................... 10
8.3 Absence of Litigation..................................................... 10
8.4 Certificates.............................................................. 10
8.5 Schedules................................................................. 10
8.6 Closing Date.............................................................. 10
8.7 Regulatory Approvals...................................................... 10
8.8 Transfer of Securities.................................................... 10
8.9 Stockholders' Agreement................................................... 11
8.10 Other Documents........................................................... 11
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ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER................................ 11
9.1 Representations, Warranties and Covenants................................. 11
9.2 Absence of Litigation..................................................... 11
9.3 Closing Date.............................................................. 11
ARTICLE X
TERMINATION...................................................................... 11
10.1 Termination............................................................... 11
10.2 Effect of Termination..................................................... 12
10.3 Breach; Specific Performance.............................................. 13
ARTICLE XI
SURVIVAL OF REPRESENTATIONSAND WARRANTIES, INDEMNIFICATION....................... 13
11.1 Survival of Representations and Warranties................................ 13
11.2 Indemnification........................................................... 13
ARTICLE XII
MISCELLANEOUS.................................................................... 14
12.1 Binding Effect............................................................ 14
12.2 Expenses.................................................................. 14
12.3 Notices................................................................... 14
12.4 Counterparts.............................................................. 14
12.5 Captions.................................................................. 15
12.6 Amendments, Supplements or Modification................................... 15
12.7 Applicable Law............................................................ 15
12.8 Construction of Agreement................................................. 15
12.9 Effect of Investigation................................................... 15
12.10 Waivers................................................................... 15
12.11 Assignment................................................................ 16
12.12 No Third Party Beneficiaries.............................................. 16
12.13 Severability.............................................................. 16
12.14 Remedies Cumulative....................................................... 16
12.15 Entire Agreement.......................................................... 16
12.16 Schedules................................................................. 16
12.17 Press Releases; Confidentiality........................................... 16
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AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of November
1, 2000 by and between FBOP CORPORATION, an Illinois corporation (the
"Purchaser") or its Affiliate(s) and Trustees of the Estate of Bernice Pauahi
Bishop ("Seller").
WITNESSETH:
WHEREAS, Seller is the owner of 4,759,848 issued and outstanding shares
of common stock, $0.01 par value per share (the "Shares") of PBOC Holdings,
Inc., a Delaware corporation (the "Holding Company");
WHEREAS, the Holding Company owns 100% of the issued and outstanding
shares of Peoples Bank of California, a savings bank organized under the laws of
the United States of America (the "Bank");
WHEREAS, the Purchaser is a bank holding company within the meaning of
the Bank Holding Company Act of 1956, as amended ("BHCA");
WHEREAS, Purchaser desires to purchase the Shares and Seller is willing
to sell the Shares to Purchaser on the terms and conditions set forth herein
(the "Transaction");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. At the Closing (as hereinafter defined), subject
to the terms and conditions of this Agreement, the Seller shall sell to the
Purchaser all of the Shares, free and clear of any and all liens, pledges,
charges or encumbrances, and the Purchaser agrees to purchase all such Shares.
1.2 Delivery of Shares. Seller shall deliver to the Purchaser at Closing
the stock certificate representing all of the Shares. At the Closing, in
consideration for the purchase price described in Section 1.3 below, the Seller
shall deliver to the Purchaser said stock certificate duly endorsed in blank or
accompanied by a duly executed stock power.
1.3 Assignment of Rights. At the Closing, Seller shall transfer to
Purchaser all of its rights under the Stockholders' Agreement dated as of April
20, 1998, as amended
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("Stockholders' Agreement") by and among Seller, Holding Company, Bank, BIL
Securities (Offshore) Ltd. and Arbur, Inc., and shall deliver such documents and
instruments of assignment related thereto as shall be reasonably satisfactory to
Purchaser. Notwithstanding anything else in this Agreement to the contrary,
Seller makes no representation or warranty with respect to the validity or
enforceability of such assignment. Nothing herein shall be deemed to imply that
Seller is assigning to Purchaser any of its rights under the Shareholder Rights
Agreement (as defined in Section 3.11).
1.4 Purchase Price. In consideration for delivery of the Shares, and
subject to all of the terms and conditions of this Agreement, the Purchaser will
pay to the Seller in cash at the Closing an amount equal to $10 per Share
("Purchase Price Per Share") for each of the Shares delivered to Purchaser in
accordance with Section 1.2 above (the aggregate consideration of $47,598,480
for all Shares so delivered is referred to herein as the "Purchase Price").
ARTICLE II
CLOSING
2.1 Closing. The consummation of the transactions contemplated by this
Agreement shall take place at a closing (the "Closing") to be held on the
Closing Date. The Closing Date shall be as soon as practicable following the
receipt of all governmental and regulatory consents and approvals and the
expiration of all applicable waiting periods in connection with any regulatory
or governmental approvals. The Closing shall take place at such time and place
as the Purchaser and the Seller may agree.
2.2 Extension of Closing Date. The Closing Date shall be no later than
the 90th day following the date of this Agreement; provided, however, that if
the required approvals of any Applicable Governmental Authorities (as defined
below) have not been received within such 90 day period, the Closing Date shall
automatically be extended for an additional period of up to 60 days. Upon such
extension, Purchaser shall deposit an amount in cash equal to 5% of the Purchase
Price ($2,379,924) in an escrow account ("Escrowed Funds") established with San
Diego National Bank pursuant to an escrow agreement on terms mutually acceptable
to Purchaser and such escrow agent.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller represents and warrants to Purchaser as set forth below as of the
date of this Agreement and as of the Closing Date (as if such representations
and warranties were remade on the Closing Date):
3.1 Organization and Standing of Seller. Seller is a charitable
educational trust duly organized, validly existing and in good standing under
the laws of Hawaii.
3.2 Due Authorization. Seller has full power and authority to enter into
this Agreement and any related agreements, and to consummate the transactions
contemplated hereby and thereby pursuant to the authority granted to Seller
under the will of Bernice Pauahi Bishop. The execution, delivery and performance
by the Seller of this Agreement and any related agreements have been duly and
validly approved by all appropriate parties, and no other actions or proceedings
on the part of the Seller or any other person are necessary to authorize this
Agreement, any related agreements or the transactions contemplated hereby and
thereby. Subject to receipt of all necessary regulatory approvals, this
Agreement and any related agreements constitute the legal, valid and binding
obligations of the Seller, enforceable against Seller in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in effect
that affect the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
3.3 Consents and Approvals. Except for any required consents and
approvals of (i) the Office of Thrift Supervision ("OTS"), (ii) the Federal
Deposit Insurance Corporation (the "FDIC"), and (iii) the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board") (collectively,
"Applicable Governmental Authorities"), the filing of certain documentary
material with the Federal Trade Commission and the Assistant Attorney General
pursuant to Section 7a(c)(8) of the Clayton Act, no filing with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
for the consummation by Seller of the transactions contemplated by this
Agreement.
3.4 Defaults and Conflicts. Subject to the receipt of all consents and
approvals contemplated by this Agreement, neither the execution and delivery of
this Agreement, the consummation of the Transaction nor the fulfillment of and
compliance with the terms and provisions hereof, will (i) violate any judicial,
administrative or arbitration order, writ, award, judgment, injunction or decree
involving Seller, or (ii) conflict with the terms, conditions or provisions of
the charter or Bylaws of Seller. No consent of any third party to any indenture
or any agreement or other instrument to which Seller is a party, including
without limitation any
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beneficiary of the Estate of Bernice Pauahi Bishop, is required in connection
with the Transaction.
3.5 Share Ownership.
(a) To the best knowledge of Seller, the authorized capital stock
of the Holding Company consists of 75,000,000 shares of common stock, $0.01 par
value per share, of which 19,876,205 shares are outstanding. Seller is the
record and beneficial owner of 4,759,848 shares of common stock of the Holding
Company, representing 23.95% of the outstanding capital stock. All of such
Shares are validly issued, fully paid and nonassessable. Holding Company legally
and beneficially owns all of the issued and outstanding capital stock of the
Bank.
(b) Except for the Shares, Seller owns no shares of capital stock
of Holding Company, and except for the Stockholders' Agreement and the
Shareholder Rights Agreement (as hereinafter defined), Seller has no other debt
or equity investment or interest in Holding Company or Bank. Except for the
Shareholder Rights Agreement, the Stockholders' Agreement and that certain
agreement by and between Seller and the Office of Thrift Supervision dated as of
_____________, 199_ ("OTS Agreement"), there are no outstanding contractual
obligations involving the Seller that relate to the purchase, sale, issuance,
repurchase, redemption, acquisition, transfer, disposition, holding or voting of
any shares of capital stock or other securities of the Holding Company or the
Bank, and no Person (as defined below) has any rights of first refusal or other
rights of any nature with respect to the Shares. Except as set forth in Schedule
3.5(b), the certificate representing the Shares contains no restrictive legends.
(c) The assignments, endorsements, stock powers and other
instruments of transfer delivered by the Seller to the Purchaser at the Closing
will be sufficient to transfer all interests, legal and beneficial, in the
Shares. The Seller has, and on the Closing Date will have, full power and
authority to convey good and marketable title to all of the Shares. Upon
transfer to the Purchaser, the Purchaser will receive good and marketable title
to such Shares, free and clear of all liens, claims and encumbrances.
As used in this Agreement, "Person" shall mean any individual, corporation,
proprietorship, firm, partnership, limited partnership, trust, governmental
authority, association or other entity.
3.6 Related Party Transactions. Except for the Stockholders' Agreement
and the Shareholder Rights Agreement (as hereinafter defined), and except as
disclosed in Schedule 3.6, neither Holding Company nor Bank nor any of their
subsidiaries or affiliates has made any loan to Seller or, to the best knowledge
of Seller, to any director, officer or other affiliate of Seller, which remains
outstanding, nor has Holding Company, Bank nor any of their subsidiaries or
affiliates entered into any agreement with Seller, or to the best knowledge of
Seller, to any of its
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Affiliates, including without limitation, any agreement for the purchase or sale
of any property or services from or to any director, officer or other affiliate
of Seller.
3.7 Information for Regulatory Approvals. The information furnished or
to be furnished by Seller in any regulatory application filed by Bank, Holding
Company or Purchaser in connection with the Transaction, will be true and
complete as of the date so furnished.
3.8 Finders and Investment Bankers. Seller has not retained any broker,
finder or other agent or incurred any liability for any brokerage fees,
commissions or finders' fees with respect to the Transaction.
3.9 Disclosure. No representation or warranty of Seller and no statement
or information relating to Seller, Holding Company or Bank or their respective
businesses or properties contained in (i) this Agreement, (ii) the Schedules
hereto or (iii) in any written statement, certificate or document furnished or
to be furnished to Purchaser pursuant to this Agreement contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements made herein or therein, in light
of the circumstances in which they were made, not misleading.
3.10 No Conflict of Interest. Other than under the Shareholder Rights
Agreement, neither the Seller nor any of its Affiliates (as defined in Article
VI) has or claims to have any direct or indirect interest in any tangible or
intangible assets or liabilities or equity interests of the Holding Company or
Bank except as a holder of Shares. Except as disclosed on Schedule 3.10, neither
Seller nor, to the best knowledge of Seller, any of its Affiliates has any
direct or indirect interest in any Person (except for the ownership of less than
1% of the outstanding stock of any publicly held corporation) which has any
contract or arrangement with, or does have business or is involved in any way
with, the Holding Company, Bank or any Subsidiary. Schedule 3.10 contains a
complete and accurate description of all such Persons, interests, arrangements
and other matters.
3.11 Goodwill Litigation. Both the Holding Company and the Bank have
been reimbursed for 100% of all costs and expenses incurred to date (including
attorneys' fees) directly or indirectly relating to or arising out of or in
connection with the so-called "Goodwill Litigation" (i.e., Southern California
Federal Savings and Loan Association, et al. v. United States, No. 93-52C)
pursuant to which the Holding Company, Bank and certain current and former
shareholders of the Holding Company are seeking damages against the United
States for breaching its commitment regarding the treatment of supervisory
goodwill. Both the Holding Company and the Bank will be fully reimbursed by
Seller for 60% of 95% of all future costs and expenses (including attorneys'
fees) directly or indirectly relating to or arising out of or in connection with
such Goodwill Litigation. Neither Holding Company nor Bank currently has or will
in the future have any liability for Seller's Proportionate Share (as
hereinafter defined) of damages, costs, expenses or other losses (including
attorneys' fees) directly or indirectly related
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to or arising out of or in connection with the Goodwill Litigation or that
certain Shareholder Rights Agreement dated as of April 20, 1998 ("Shareholder
Rights Agreement") by and among Seller, Holding Company, Bank, BIL Securities
(Offshore) Ltd. and Arbur, Inc. As used in this Agreement, "Seller's
Proportionate Share" means (i) 60% of 95% of any such liability arising out of
any claim by a party now pending or hereafter brought, seeking in whole or in
part any amounts paid or to be paid by the United States in connection with the
Goodwill Litigation, and (ii) 60% of 100% of any such liability arising out of
any claim by a party other than the Holding Company or the Bank challenging the
validity or effect of the Shareholder Rights Agreement or otherwise directly or
indirectly related to or arising out of or in connection with the Goodwill
Litigation or Shareholder Rights Agreement (to the extent not covered by
subsection (i) above).
3.12 Agreements. Seller has delivered to Purchaser true and correct
copies of the Stockholders' Agreement, the Shareholder Rights Agreement and the
OTS Agreement, together with any and all amendments thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as set forth below as of the
date of this Agreement and as of the Closing Date (as if such representations
and warranties were remade on the Closing Date):
4.1 Organization of Purchaser. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Illinois.
4.2 Authorization. Purchaser has full power and authority to enter into
this Agreement and any related agreements and, subject to obtaining all required
regulatory approvals, to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by the Purchaser of this
Agreement and any related agreements have been duly and validly approved by the
board of directors of Purchaser, and no other actions or proceedings on the part
of the Purchaser or any other person are necessary to authorize this Agreement,
any related agreements or the transactions contemplated hereby and thereby.
Subject to receipt of all necessary regulatory approvals, this Agreement and any
related agreements constitute the valid and legally binding obligations of
Purchaser, enforceable against it in accordance with their respective terms,
except as such enforceability may be limited by applicable to bankruptcy,
receivership, insolvency, reorganization, moratorium or similar laws affecting
or relating to creditors rights generally and subject to general principles of
equity.
4.3 Consents and Approvals. Except for any required consents and
approvals of the Applicable Governmental Authorities, the filing of certain
documentary material with the Federal Trade Commission and the Assistant
Attorney General pursuant to Section 7a(c)(8) of
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the Clayton Act, no filing with, and no permit, authorization, consent or
approval of, any public body or authority is necessary for the consummation by
Purchaser of the transactions contemplated by this Agreement.
4.4 Defaults and Conflicts. Subject to the receipt of all consents and
approvals contemplated by this Agreement, the execution and delivery of this
Agreement, the consummation of the Transaction or the fulfillment of and
compliance with the terms and provisions hereof will not (i) violate any
judicial, administrative or arbitration order, writ, award, judgment, injunction
or decree involving Purchaser, or (ii) conflict with any of the terms,
conditions or provisions of the Articles of Incorporation or Bylaws of
Purchaser. No consent of any third party to any indenture or any material
agreement or other material instrument to which Purchaser is a party is required
in connection with the Transaction.
4.5 Finders and Investment Bankers. Purchaser has not retained any
broker, finder or other agent or incurred any liability for any brokerage fees,
commissions or finders' fees with respect to the Transaction.
ARTICLE V
INFORMATION
From the date hereof until the Closing Date, Seller shall provide
Purchaser with all information and reports relating to the Holding Company, Bank
or other Subsidiaries received by Seller in its capacity as a shareholder of the
Company, and shall provide Purchaser with other information and reports received
by Seller in any other capacity to the extent not otherwise specifically
prohibited by applicable law.
ARTICLE VI
COVENANTS OF SELLER
6.1 Exclusivity.
(a) Unless otherwise specifically prohibited by applicable law,
without the prior written consent of Purchaser, Seller shall not, directly or
indirectly, solicit, initiate, encourage or respond favorably to inquiries or
proposals from, or participate in any discussions or negotiations with, any
person (other than Purchaser and its directors, officers, employees,
representatives and agents) concerning (i) any merger, sale of assets not in the
ordinary course of business, acquisition, business combination, change of
control or other similar transaction involving Holding Company or Bank, or (ii)
any purchase or other acquisition by any person of the Shares or any shares of
capital stock of Bank, or (iii) any issuance by Holding Company or Bank of any
shares of its capital stock.
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(b) Unless otherwise specifically prohibited by applicable law,
Seller will promptly advise Purchaser of, and communicate to Purchaser the terms
and conditions of (and the identity of the person making), any such inquiry or
proposal received, and will promptly furnish Purchaser with copies of any
documents received and summaries of any other communications with respect
thereto. Seller will cease any such existing activities, discussions or
negotiations with any Person conducted heretofore with respect to any of the
foregoing.
As used in this Agreement, the term "Affiliate" shall mean, with respect
to any specified person, (1) any other person which, directly or indirectly,
owns or controls, is under common ownership or control with, or is owned or
controlled by, such specified person, (2) any other person which is a director,
officer or partner or is, directly or indirectly, the beneficial owner of 5
percent or more of any class of equity securities, of the specified person or a
person described in clause (1) of this paragraph, (3) another person of which
the specified person is a director, officer or partner or is, directly or
indirectly, the beneficial owner of 5 percent or more of any class of equity
securities, (4) another person in which the specified person has a substantial
beneficial interest or as to which the specified person serves as trustee or in
a similar capacity, or (5) any relative or spouse of the specified person or any
of the foregoing persons, any relative of such spouse or any spouse of any such
relative.
6.2 Actions of Seller. Seller agrees that unless this Agreement is
terminated in accordance with the provisions hereof, (i) Seller will not acquire
any additional shares of the capital stock of Holding Company (other than stock
dividends, if any, declared and paid by Holding Company on the Shares, which
stock dividends shall be included for all purposes hereunder in the definition
of Shares), (ii) Seller will not encumber any of the Shares, (iii) Seller will
not sell or offer to sell any of the Shares to any Person other than the
Purchaser, (iv) Seller will not take any other action which could have the
effect of preventing or disabling the performance by either of such parties of
their respective obligations under this Agreement, or which could materially and
adversely affect the rights of Purchaser hereunder.
6.3 Notice. Seller shall give prompt notice to Purchaser of any notice
or other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated hereby.
6.4 Supplemental Information; Disclosure Supplements. From time to time
prior to the Closing Date, Seller will promptly disclose in writing to Purchaser
any matter hereafter arising which, if existing, occurring or known at the date
of this Agreement would have been required to be disclosed by Seller or which
would render inaccurate any of the representations, warranties or statements of
Seller set forth in this Agreement. From time to time prior to the Closing Date,
Seller will promptly supplement or update any Schedule delivered in connection
with the execution of this Agreement to reflect any matter which, if existing,
occurring or known
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at the date of this Agreement, would have been required to be set forth or
described in such Schedule or which is necessary to update any information in
such Schedule.
ARTICLE VI-A
COVENANTS OF PURCHASER
6.A.1 Limitation on Additional Purchases. Without the prior written
consent of Seller, for a period of 90 days following the date of this Agreement,
Purchaser will not acquire record or beneficial ownership of any of the
outstanding common stock of the Holding Company for a price in excess of $10 per
share.
6.A.2 Share of Profits. In the event that Purchaser sells any of the
Shares acquired hereunder during the 90 day period following the Closing Date
("Subsequent Sale"), Purchaser agrees to pay to Seller an amount equal to 50% of
the amount by which the price per share in the Subsequent Sale exceeds $10 per
share. In the event the consideration received by Purchaser for the Shares is
not in cash, Purchaser shall transfer 50% of the consideration so received to
Seller.
6.A.3 Supplemental Information. From time to time prior to the Closing
Date, Purchaser will promptly disclose in writing to Seller any matter hereafter
arising which, if existing, occurring or known at the date of this Agreement
would have been required to be disclosed by Purchaser or which would render
inaccurate any of the representations, warranties or statements of Purchaser set
forth in this Agreement.
6.A.4 Application. As promptly as practicable following the execution of
this Agreement, Purchaser agrees to prepare and file any required application
with the Federal Reserve Board for approval to consummate the Transaction
described in this Agreement, and to make any required filing with the Federal
Trade Commission and Assistant Attorney General required pursuant to Section
7a(c)(8) of the Clayton Act.
ARTICLE VII
COOPERATION
7.1 Reasonable Efforts. Subject to the terms and conditions hereof and
the parties' respective rights to terminate this Agreement, each party hereto
shall use its reasonable efforts to take all action required of it to fulfill
its obligations under the terms of this Agreement and to facilitate the
satisfaction of the conditions to and the consummation of the transactions
contemplated hereby. The Seller and the Purchaser will cooperate with each other
in securing all the necessary approvals, regulatory or otherwise, needed to
consummate the transactions contemplated herein.
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ARTICLE VIII
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE PURCHASER
The obligations of the Purchaser hereunder shall be subject to the
satisfaction (or written waiver by the Purchaser) on or before the Closing Date
of each condition precedent set forth in this Agreement and to all of the
following additional conditions:
8.1 Representations, Warranties and Covenants. The representations and
warranties of the Seller contained herein shall have been accurate, true,
correct and complete on and as of the date of this Agreement, and shall also be
accurate, true, correct, and complete on and as of the Closing Date with the
same force and effect as though made by the Seller on and as of the Closing
Date. The Seller shall have performed all agreements and covenants required by
this Agreement to be performed by it on or prior to the Closing Date. The
Purchaser shall have received a Certificate, dated as of the Closing Date and
signed by the Seller, to the foregoing effect, together with a certificate
showing the incumbency and signatures of officers authorized to execute
documents on behalf of Seller in connection with the Transaction.
8.2 Adverse Changes. During the period from the date of this Agreement
to the Closing Date, there shall not have been, as determined in the sole
discretion of the Purchaser, any material adverse changes involving an aggregate
amount in excess of $750,000 in the business, operations, results of operations,
assets, liabilities, investments, properties, condition (financial or
otherwise), affairs, prospects or other attributes of the Holding Company or the
Bank, or any of the Subsidiaries; provided however that changes in the fair
value of loans receivable, due solely to the use of current interest rates for
discounting future cash flows at which loans with similar terms would be made
secured by property and to borrowers with similar credit and other
characteristics and with similar remaining terms to maturity, will not be
considered a material adverse change for purposes of this section.
8.3 Absence of Litigation. There shall not be pending or threatened any
action or proceeding seeking to restrain, enjoin, prohibit, or obtain damages in
connection with or related to any part of this Agreement or any related
agreement.
8.4 Certificates. Certificates representing at least 23.9% of the
outstanding shares of common stock of the Holding Company shall have been
properly tendered and delivered to Purchaser, together with stock powers duly
executed in blank.
8.5 Schedules. Purchaser shall have received all of the Schedules
referred to herein, which Schedules shall be acceptable to Purchaser, and if
such Schedules are updated prior to the Closing Date, such Schedules shall be
acceptable to Purchaser in its sole discretion, reasonably exercised.
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8.6 Closing Date. The Closing Date shall be no later than the 90th day
following the date of this Agreement, subject to an additional 60-day extension
as described in Section 2.2 hereof.
8.7 Regulatory Approvals. To the extent required by applicable law or
regulation, all approvals of any governmental or regulatory authority required
in connection with the acquisition of shares of the Holding Company by Purchaser
will have been obtained, which approvals will be acceptable to Purchaser in form
and substance in its sole discretion, and all necessary waiting periods under
federal or state law will have expired. All other statutory or regulatory
requirements for the valid consummation of the transactions contemplated hereby
will have been satisfied.
8.8 Transfer of Securities. Seller, at its expense, shall have delivered
to Purchaser (i) an opinion of counsel reasonably acceptable to Purchaser
regarding Seller's ability to transfer the Shares pursuant to an available
exemption from the securities laws, and (ii) evidence satisfactory to Purchaser
that such opinion is satisfactory to the Holding Company. Alternatively, Seller
shall deliver to Purchaser satisfactory evidence that Holding Company has waived
the requirement for an opinion of counsel.
8.9 Stockholders' Agreement. Seller shall have delivered to Purchaser
satisfactory documents of assignment and transfer with respect to the assignment
by Seller of its rights under the Stockholders' Agreement.
8.10 Other Documents. The Purchaser shall have received all such other
documents, certificates or instruments as it reasonably may request.
ARTICLE IX
CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE SELLER
The obligations of the Seller hereunder shall be subject to the
satisfaction (or written waiver by the Seller) on or before the Closing Date of
each condition precedent set forth in this Agreement and to all of the following
additional conditions:
9.1 Representations, Warranties and Covenants. The representations and
warranties of the Purchaser contained herein shall have been accurate, true,
correct and complete on and as of the date of this Agreement, and shall also be
accurate, true, correct and complete on and as of the Closing Date with the same
force and effect as though made by the Purchaser on and as of the Closing Date.
The Purchaser shall have performed in all material respects all agreements and
covenants required by this Agreement to be performed by it on or prior to the
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Closing Date. The Seller shall have received a Certificate, dated as of the
Closing Date and signed by an officer of the Purchaser, to the foregoing effect,
together with a certificate showing the incumbency and signatures of officers
authorized to execute documents on behalf of Purchaser in connection with the
Transaction.
9.2 Absence of Litigation. There shall not be pending or threatened any
action or proceeding seeking to restrain, enjoin, prohibit, or obtain damages in
connection with or related to any part of this Agreement or any related
agreement.
9.3 Closing Date. The Closing Date shall be no later than the 90th day
following the date of this Agreement, subject to an additional 60-day extension
as described in Section 2.2 hereof.
ARTICLE X
TERMINATION
10.1 Termination.
This Agreement may be terminated at the option of the applicable
party at any time prior to the Closing:
(i) by written agreement of the Purchaser and the Seller;
(ii) by the Purchaser, by written notice to the Seller if any of
the conditions set forth in Article VIII have not been satisfied as of
the Closing;
(iii) by the Seller by written notice to the Purchaser if any of
the conditions set forth in Article IX have not been satisfied as of the
Closing;
(iv) by any of the Seller or the Purchaser, if the Closing shall
not have taken place on or before the 90th day following the date of
this Agreement, subject to an additional 60-day extension as described
in Section 2.2 hereof; provided, however, that the right to terminate
this Agreement under this Section 10.1(iv) shall not be available to any
party whose failure to fulfill any obligation under this Agreement has
been the cause of or resulted in the failure of the Closing to occur on
or before such date;
(v) by the Purchaser, if there shall have been a breach of any
covenant, representation or warranty of the Seller; provided, however,
that in the event that Purchaser desires to terminate the Agreement
based on an alleged breach of a covenant, representation or warranty,
Purchaser must notify the Seller in writing of its intent to terminate,
stating the reason therefor. The alleged breaching party shall have
thirty (30)
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days from the date of receipt of such notice to cure the alleged breach,
subject to the approval of Purchaser (which approval shall not be
unreasonably withheld or delayed);
(vi) by the Seller, if there shall have been a breach of any
covenant, representation or warranty of the Purchaser hereunder;
provided, however, that in the event that the Seller desires to
terminate the Agreement based on an alleged breach of a covenant,
representation or warranty, such party must notify the Purchaser in
writing of its intent to terminate, stating the reason therefor. The
alleged breaching party shall have thirty (30) days from the date of
receipt of such notice to cure the alleged breach, subject to the
approval of the Seller (which approval shall not be unreasonably
withheld or delayed); or
(vii) by the Purchaser by written notice to Seller if any
Applicable Governmental Authority shall have denied or refused to grant
the approvals or consents required to be obtained pursuant to this
Agreement, unless Purchaser in its sole discretion agrees to submit or
resubmit an application to, or appeal the decision of, the regulatory
authority which denied or refused to grant approval thereof.
10.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 10.1, all obligations of the parties hereunder shall terminate, except
for the obligations set forth in Section 12.2 and Section 12.17, which shall
survive the termination of this Agreement, and except that no such termination
shall relieve any party from liability for any prior willful breach of this
Agreement.
10.3 Breach; Specific Performance. If the transactions contemplated by
this Agreement have not been consummated as a result of a breach of this
Agreement by the Seller, the parties agree that the Purchaser shall be entitled,
at its option and in addition to any other available legal and equitable
remedies, to specific performance of this Agreement. Seller agrees that the
Purchaser shall be entitled to an injunction or injunctions to prevent breaches
of the provisions of this Agreement and to enforce specifically this Agreement
and the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be entitled, at law or
in equity.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES, INDEMNIFICATION
11.1 Survival of Representations and Warranties. The representations and
warranties of the parties herein contained, unless waived in writing, will
survive the Closing and the consummation of any or all of the transactions
contemplated hereby. All covenants not fully performed as of the Closing will
survive the Closing.
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<PAGE> 18
11.2 Indemnification. The Seller agrees to indemnify and hold Purchaser
harmless from and against any and all losses, liabilities, actions, obligations,
damages, claims, deficiencies, costs and expenses (including reasonable
attorneys' fees) (collectively, the "Adverse Consequences") which may be
incurred by the Purchaser directly or indirectly (whether arising out of its
ownership of the Shares or otherwise) by reason of the breach by the Seller of
any representation, warranty, covenant or obligation of the Seller to Purchaser
under this Agreement. Without limiting the generality of the foregoing, Seller
specifically agrees to:
(A) indemnify Purchaser for all Adverse Consequences incurred by
the Purchaser directly that arise out of, relate to or are in connection
with (i) the Goodwill Litigation, (ii) the Shareholder Rights Agreement
and (iii) any other third-party lawsuits or other matters directly or
indirectly arising out of or related to either of the foregoing,
including but not limited to that certain lawsuit brought by Ariadne
Financial Services Pty. Ltd. and Memvale Pty. Ltd. (the "Ariadne Suit");
and
(B) indemnify Bank and Holding Company for Seller's Proportionate
Share of any Adverse Consequences incurred by Bank or Holding Company
directly or indirectly arising out of, relating to or in connection with
(i) the Goodwill Litigation, (ii) the Shareholder Rights Agreement and
(iii) any other third-party lawsuits or other matters directly or
indirectly arising out of or related to either of the foregoing,
including but not limited to the Ariadne Suit.
ARTICLE XII
MISCELLANEOUS
12.1 Binding Effect. All covenants, agreements, representations and
warranties of the parties contained herein shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, permitted
assigns, and legal representatives.
12.2 Expenses. Each party hereto will bear its own expenses, costs and
fees incurred or assumed in connection with the transactions contemplated
hereby.
12.3 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person, by Federal Express,
courier or a courier service, or by registered or certified mail or (b) on the
date of transmission if sent by telex, facsimile or other wire transmission (or
to such other Persons or at such other addresses as shall be given in like
manner by any party to the others):
To the Purchaser: FBOP Corporation
11 West Madison
Oak Park, Illinois 60302
Attention: Michael E. Kelly
Facsimile: 708-445-3223
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<PAGE> 20
With a copy to: Lord, Bissell & Brook
115 South LaSalle Street
Chicago, Illinois 60603
Attention: Edward C. Fitzpatrick
Facsimile: 312-443-0336
To the Seller: Trustees of the Estate of Bernice Pauahi
Bishop
567 S. King St., Suite 310
Honolulu, Hawaii 96813
Attention: Aaron Au
Fax: 808-524-7013
With a copy to: Morrison & Foerster LLP
555 W. Fifth St. #3500
Los Angeles, California 90013-1024
Attention: Mark T. Gillett
Fax: 213-892-5454
2.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. If executed copies of
this Agreement are forwarded by a party via facsimile to the other party, the
original of such signatures shall be delivered to such other party within two
business days of the date of this Agreement.
12.5 Captions. Captions and paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall not be used in
construing or interpreting any provision hereof.
12.6 Amendments, Supplements or Modifications. This Agreement may only
be amended by a written agreement signed by each of the parties hereto.
12.7 Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Illinois, except to the
extent certain matters may governed as a matter of law by the laws of the United
States of America.
12.8 Construction of Agreement. When permitted by the context, the
singular includes the plural and vice versa. The use of the masculine, feminine
or neuter gender herein shall not limit any provision of this Agreement. The use
of the terms "including" or "include" shall in all cases herein mean "including,
without limitation" or "include, without limitation" respectively. Underscored
references to Articles, Sections, Subsections or Schedules shall refer to those
portions of this Agreement. Consummation of the transactions contemplated herein
shall not be deemed a waiver of a breach of or an inaccuracy in any
representation, warranty or covenant or
15
<PAGE> 21
of any party's rights and remedies with regard thereto. No specific
representation, warranty or covenant contained herein shall limit the generality
or applicability of a similar or more general representation, warranty or
covenant contained herein. A breach of or an inaccuracy in any representation,
warranty or covenant shall not be affected by the fact that any similar or more
or less specific representation, warranty or covenant was not also breached or
inaccurate.
12.9 Effect of Investigation. Any due diligence review, audit or other
investigation or inquiry undertaken or performed by or on behalf of the
Purchaser shall not limit, qualify, modify or amend the representations,
warranties or covenants of, or indemnities by, the Seller made or undertaken
pursuant to this Agreement, irrespective of the knowledge and information
received (or which should have been received) therefrom by the Purchaser.
12.10 Waivers. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one of more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
12.11 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that no assignment of any rights or obligations shall be made
by the Seller without the written consent of the Purchaser, or by the Purchaser
without the written consent of the Seller, except that the Purchaser may assign
its rights hereunder without such consent to any wholly-owned subsidiary of the
Purchaser.
12.12 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and, to the extent provided herein, their
respective Affiliates, directors, officers, employees, agents and
representatives, and no provision of this Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement, cause of
action or other right, except with respect to Seller's obligation to indemnify
the Holding Company and Bank pursuant to Section 11.2 hereof.
12.13 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
12.14 Remedies Cumulative. The remedies provided in this Agreement shall
be cumulative and shall not preclude the assertion or exercise of any other
rights or remedies available by law, in equity or otherwise.
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<PAGE> 22
12.15 Entire Agreement. This Agreement (together with the Schedules
hereto and the documents referred to herein) contains, and is intended as, a
complete statement of all of the terms of the arrangements between the parties
with respect to the matters provided for herein, and supersedes any previous
agreements and understandings between the parties with respect to those matters.
12.16 Schedules. All information set forth in the Schedules hereto shall
be deemed a representation and warranty of Seller as to the accuracy and
completeness of such information.
12.17 Press Releases; Confidentiality. Except as may otherwise
specifically be required by legal process, applicable law or regulation, neither
party will make any publicity release concerning this Agreement or the
transactions contemplated hereby without advance written approval thereof by the
other party. Each party agrees to cooperate with the other in the development
and distribution of all news releases with respect to this Agreement, the
Transaction or any of the transactions contemplated hereby or thereby. Unless
otherwise agreed by Purchaser in writing, and except as may otherwise
specifically be required by applicable legal process, law or regulation, Seller
will, and will cause its Affiliates to, at all times keep the existence of the
Transaction, this Agreement and the terms and conditions of this Agreement
confidential, and further agrees not to disclose to any Person any nonpublic
information regarding the Purchaser. Seller will immediately, and in any event
within three business days, notify Purchaser if Seller has received any request
or demand for disclosure of any information protected hereunder that is
purported to be required by legal process, applicable law or regulation. Seller
will provide Purchaser with copies of such request or demand so that Purchaser
may seek a protective order or other appropriate remedy. Seller further agrees
to cooperate with Purchaser in its attempt to maintain the confidentiality of
the information sought. If Purchaser is unable to obtain a protective order or
other remedy, Seller may disclose such confidential information if in the
written opinion of counsel Seller is required to do so. In such event, Seller
may disclose only the information actually required to be disclosed pursuant to
such legal process or applicable law or regulation.
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<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the date first above written.
TRUSTEES OF THE ESTATE OF BERNICE PAUAHI
BISHOP
By: /s/ Ronald D. Libkuman
-----------------------------------
Name: Ronald D. Libkuman
------------------------------
Title: Trustee
-----------------------------
By: /s/ Francis A. Keala
-----------------------------------
Name: Francis A. Keala
------------------------------
Title: Trustee
-----------------------------
By: /s/ David P. Coon
-----------------------------------
Name: David P. Coon
------------------------------
Title: Trustee
-----------------------------
FBOP CORPORATION
By: /s/ Michael E. Kelly
-----------------------------------
Name: Michael E. Kelly
Title: Chairman of the Board
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<PAGE> 24
SCHEDULE 3.5(b)
"SHARE OWNERSHIP"
See restrictive legend on stock certificate No. 0009 for 4,759,848 shares of
common stock issued by PBOC Holdings, Inc. to Seller.
<PAGE> 25
SCHEDULE 3.6
"RELATED PARTY TRANSACTIONS"
None
<PAGE> 26
SCHEDULE 3.10
"NO CONFLICT OF INTEREST"
None
