<PAGE>
Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
BLUE RIVER BANCSHARES, INC.
AND
FIRSTATLANTIC FINANCIAL HOLDINGS, INC.
SEPTEMBER 18, 2006
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TABLE OF CONTENTS
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SECTION 1 THE
TRANSACTIONS.................................................
1
1.01. The
Purchase and Assumption.......................................
1
1.02. The Stock
Purchase................................................
2
SECTION 2 REPRESENTATIONS AND WARRANTIES OF BLUE
RIVER..................... 3
2.01.
Organization and Authority........................................
3
2.02.
Authorization.....................................................
4
2.03. Litigation
and Pending Proceedings................................
5
2.04. Broker's,
Finder's or Other Fees..................................
6
2.05. Accuracy
of Statements Made and Materials Provided to Holdings....
6
SECTION 3 REPRESENTATIONS AND WARRANTIES OF
HOLDINGS....................... 6
3.01.
Organization and Authority........................................
7
3.02.
Authorization.....................................................
7
3.03. Litigation and Pending
Proceedings................................ 8
3.04.
Financing.........................................................
9
3.05. Broker's,
Finder's or Other Fees..................................
9
3.06. Accuracy
of Statements Made and Materials Provided to Blue River..
9
SECTION 4 COVENANTS OF BLUE
RIVER.......................................... 9
4.01.
[Intentionally Omitted]...........................................
9
4.02. Bank
Regulatory Approvals and Actions.............................
9
4.03. Press
Releases....................................................
10
4.04. Blue River
Disclosure Schedule Update.............................
10
4.05.
[Intentionally Omitted]...........................................
10
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4.06. Adverse
Actions...................................................
10
SECTION 5 COVENANTS OF
HOLDINGS............................................ 11
5.01. Holdings
Financing................................................
11
5.02. Bank
Regulatory Approvals and Actions.............................
11
5.03. Press
Releases....................................................
11
5.04.
[Intentionally Omitted]...........................................
11
5.05. Adverse
Actions...................................................
12
SECTION 6 CONDITIONS PRECEDENT TO THE
TRANSACTIONS......................... 12
6.01. Blue
River........................................................
12
6.02.
Holdings..........................................................
13
SECTION 7 TERMINATION OF
TRANSACTIONS...................................... 14
7.01. Manner of
Termination.............................................
14
7.02. Effect of
Termination.............................................
15
SECTION 8
CLOSING..........................................................
16
8.01. Closing
Date and Place............................................
16
8.02.
Deliveries........................................................
16
SECTION 9
MISCELLANEOUS....................................................
17
9.01.
Non-survival of Representations, Warranties and Agreements........
17
9.02. Binding
Effect; Assignment........................................
17
9.03. Waiver;
Amendment.................................................
17
9.04.
Notices...........................................................
18
9.05.
Headings..........................................................
18
9.06.
Severability......................................................
18
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9.07.
Counterparts......................................................
19
9.08. Governing
Law; Enforcement; Specific Performance; Jury Trial......
19
9.09. Entire
Agreement..................................................
19
9.10.
Expenses..........................................................
19
9.11. Certain
References................................................
19
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iv
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
THIS
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
and
entered into, effective as of the 18th day of September, 2006, by
and among Blue
River Bancshares, Inc. ("Blue River") and FirstAtlantic Financial
Holdings, Inc.
("Holdings").
WITNESSETH:
WHEREAS, Blue River is an Indiana corporation registered as a
savings and
loan holding company under the Home Owners Loan Act, as amended
("HOLA"), with
its principal office located in Shelbyville, Shelby County,
Indiana; and
WHEREAS, Blue River is the sole owner of all of the outstanding
capital
stock of Shelby County Bank ("SCB") and Paramount Bank
("Paramount")
(collectively, the "Blue River Subsidiaries"); and
WHEREAS, Holdings is a Florida corporation, with its principal
office
located in Jacksonville, Florida; and
WHEREAS, Blue River and Holdings seek a corporate reorganization
whereby
(i) SCB will acquire certain assets, and certain liabilities, of
Paramount and
(ii) Holdings will acquire all of the outstanding capital stock of
Paramount
from Blue River; and
WHEREAS, the respective Boards of Directors of each of Blue River
and
Holdings have determined that it is in the best interests of their
respective
corporations to consummate the business combinations and other
transactions
contemplated by this Agreement and that such transactions are
consistent with,
and in furtherance of, their respective business strategies and
goals, and have
approved this Agreement and authorized its execution.
NOW,
THEREFORE, in consideration of the foregoing premises, the
representations, warranties, covenants and agreements herein
contained and other
good and valuable consideration, the sufficiency of which is
hereby
acknowledged, the parties hereby make this Agreement as
follows:
SECTION 1
THE TRANSACTIONS
1.01. The Purchase and Assumption.
(a)
General Description. Blue River shall take all action necessary
and
appropriate, including entering into a purchase and assumption
agreement (the
"P&A Agreement") substantially in the form attached hereto as
Exhibit A, to
cause SCB to acquire certain assets, and certain liabilities, of
Paramount and
to provide indemnification of Paramount with respect to such
liabilities (the
"P&A Transaction").
1
<PAGE>
(b)
Consideration. The consideration to be received by Paramount from
SCB
in the P&A Transaction shall be an amount agreeable to
Paramount and SCB (the
"P&A Consideration"). The P&A Consideration shall be paid
as provided in the P&A
Agreement.
(c)
Effective Time. Upon the terms and subject to the conditions
specified
in this Agreement, unless otherwise mutually agreed to by the
parties hereto,
Blue River shall cause the P&A Transaction to be effective as
of the Effective
Time.
1.02. The Stock Purchase.
(a)
General Description. Blue River and Holdings shall take all
action
necessary and appropriate, including entering into a stock purchase
agreement
(the "Stock Purchase Agreement") substantially in the form attached
hereto as
Exhibit B, to cause Holdings to acquire all of the capital stock of
Paramount
from Blue River (the "Stock Purchase Transaction").
(b)
Consideration. The consideration to be received by Blue River
from
Holdings in the Stock Purchase Transaction shall equal One Million
Six Hundred
Seventy-Five Thousand Dollars ($1,675,000.00) (the "Stock
Consideration"). The
Stock Consideration shall be paid as provided in the Stock Purchase
Agreement.
(c)
Earnest Money Deposit. Upon the date of this Agreement, Holdings
shall
deposit with SCB an amount equal to Five Hundred Thousand Dollars
($500,000.00)
(the "Earnest Money") to be held in a restricted deposit account
and such amount
shall only be disbursed pursuant to the terms of this Agreement. If
this
Agreement is terminated pursuant to Section 7 hereof, then the
Earnest Money
shall be forfeited by Holdings and paid by SCB to Blue River, as
liquidated
damages and in lieu of any liabilities otherwise due Blue River;
provided,
however, if Holdings terminates this Agreement pursuant to Section
7.01(a)(ii),
7.01(c)(i), 7.01(c)(ii) or because of Holdings failure to obtain
regulatory
approval to consummate the Transactions after compliance with
Section 5.02(a)
(excluding any failure due in whole or in part to Holdings not
being able to
obtain the Required Regulatory Capital), then Blue River shall
refund to
Holdings within forty-five (45) days of such termination an amount,
in cash or
other immediately available funds, equal to the Earnest Money;
provided,
however, if this Agreement is terminated because of Holdings
failure to obtain
regulatory approval to consummate the Transactions (excluding any
failure due in
whole or in part to Holdings not being able to obtain the Required
Regulatory
Capital), then Blue River shall only be obligated to refund to
Holdings Four
Hundred Thousand Dollars ($400,000.00) of the Earnest Money. The
parties hereby
acknowledge and agree that the Earnest Money shall compensate Blue
River for (i)
expenses incurred for attorneys, accountants, and consultants of
Blue River with
respect to the Transactions, (ii) Blue River's management time and
expense in
investigating, analyzing, developing and pursuing the Transactions,
and (iii)
expenses relating to Blue River's due diligence efforts. Holdings
further
acknowledges and agrees that the amount of the Earnest Money is
fair, reasonable
and not a penalty and that its obligations with respect to the
Earnest Money
shall survive any termination of this Agreement.
(d)
Effective Time. Upon the terms and subject to the conditions
specified
in this Agreement, unless otherwise mutually agreed to by the
parties hereto,
the Blue River and Holdings shall cause the Stock Purchase
Transaction to be
effective as of the Effective Time.
2
<PAGE>
SECTION 2
REPRESENTATIONS AND WARRANTIES OF BLUE RIVER
For
the purpose of this Agreement, and in relation to Blue River and
the
Blue River Subsidiaries, a "Material Adverse Effect on Blue River"
means any
effect that (i) is material and adverse to the financial position,
properties,
assets, liabilities, results of operations, liquidity, or business
and future
prospects of Blue River and the Blue River Subsidiaries, as a
consolidated
whole, as they existed as of the date of this Agreement, or (ii)
would
materially impair the ability of Blue River or the Blue River
Subsidiaries to
perform their respective obligations under this Agreement or under
any of the
Transaction Agreements (defined herein as the Stock Purchase
Agreement and the
P&A Agreement) or otherwise materially threaten or materially
impede the
consummation of the Transactions and the other transactions
contemplated by this
Agreement; provided however, that Material Adverse Effect on Blue
River shall
not be deemed to include the impact of (a) changes in banking and
similar laws
of general applicability or interpretations thereof by courts or
governmental
authorities, (b) changes in GAAP or regulatory accounting
requirements
applicable to banks or savings associations and their holding
companies
generally, (c) any modifications or changes to valuation policies
and practices
in connection with the Transactions, or restructuring charges taken
in
connection with the Transactions, in each case in accordance with
GAAP, (d)
effects of any action taken with the prior written consent of
Holdings, (e)
changes in general levels of interest rates or conditions or
circumstances that
affect the banking industry, generally, and (f) commencement of a
new war or an
escalation of current wars, armed hostilities or terrorism directly
or
indirectly involving the United States of America.
No
representation or warranty of Blue River contained in this Section
2
shall be deemed untrue, incomplete or incorrect, and Blue River
shall not be
deemed to have breached any such specified representation or
warranty, as a
consequence of the existence of any fact, event or circumstance
unless such
fact, circumstance or event, individually or taken together with
all other
facts, events or circumstances inconsistent with any representation
or warranty
contained in this Section 2, has had or is reasonably likely to
have a Material
Adverse Effect on Blue River (the "Blue River Disclosure
Standard").
Accordingly, Blue River hereby represents and warrants to Holdings,
as of
the date hereof and as of the Effective Time (subject to the Blue
River
Disclosure Standard), as follows:
2.01. Organization and Authority.
(a)
Blue River is a corporation duly organized and validly existing
under
the laws of the State of Indiana and is a registered savings and
loan holding
company under HOLA. Blue River has full power and authority
(corporate and
otherwise) to own, operate and lease its properties as presently
owned, operated
and leased and to conduct its business in the manner and by the
means utilized
as of the date hereof. Blue River has a class of stock registered
pursuant to
Section 12, and is subject to the reporting requirements, of the
Securities
Exchange Act of 1934, as amended (the "1934 Act"). Except as set
forth in the
Blue River Disclosure Schedule, the Blue River Subsidiaries are
Blue River's
only direct subsidiaries, and except as disclosed in the Blue River
Disclosure
Schedule, Blue River owns no voting stock or equity securities of
any other
corporation, partnership, association or other entity.
3
<PAGE>
(b)
SCB is a federal savings association duly organized, validly
existing
and in good standing under the laws of the United States of
America. SCB is
subject to primary regulatory supervision and examination by the
OTS. SCB has
full power and authority (corporate and otherwise) to own, operate
and lease its
properties as presently owned, operated and leased and to conduct
its business
in the manner and by the means utilized as of the date hereof. SCB
has no
subsidiaries and owns no voting stock or equity securities of any
corporation,
partnership, association or other entity.
(c)
Paramount is a federal savings association duly organized,
validly
existing and in good standing under the laws of the United States
of America.
Paramount is subject to primary regulatory supervision and
examination by the
OTS. Paramount has full power and authority (corporate and
otherwise) to own,
operate and lease its properties as presently owned, operated and
leased and to
conduct its business in the manner and by the means utilized as of
the date
hereof. Paramount has no subsidiaries and owns no voting stock or
equity
securities of any corporation, partnership, association or other
entity.
(d)
All of the issued and outstanding shares of capital stock of SCB
and
Paramount are owned by Blue River free and clear of all liens,
pledges, charges,
claims, encumbrances, restrictions, security interests, options and
pre-emptive
rights and of all other rights or claims of any other person,
corporation or
entity with respect thereto.
(e)
Except as set forth in the Blue River Disclosure Schedule neither
Blue
River nor the Blue River Subsidiaries has the right to designate a
director,
officer or other management official of (or to consent to changes
in directors,
officers or other management officials, or otherwise exercise any
controlling
influence over) any for-profit or non-profit corporation,
partnership, limited
liability company, joint venture, trust, foundation, or other
entity or
association, other than the Blue River Subsidiaries.
2.02. Authorization.
(a)
Blue River has the requisite corporate power and authority to
enter
into this Agreement and to perform its obligations hereunder,
subject to the
fulfillment of the conditions precedent set forth in Section
6.01(d) and (e)
hereof. Blue River is not aware of any reason why the approvals set
forth in
Section 6.01(e) will not be received in a timely manner and without
the
imposition of a condition, restriction or requirement of the type
described in
Section 6.01(e). This Agreement, and its execution and delivery by
Blue River,
has been duly authorized and approved by the Board of Directors of
Blue River
and, assuming due execution and delivery by Holdings, constitutes a
valid and
binding obligation of Blue River, subject to the fulfillment of the
conditions
precedent set forth in Section 6.01 hereof, and is enforceable in
accordance
with its terms, except to the extent limited by general principles
of equity and
public policy and by bankruptcy, insolvency, fraudulent
transfer,
reorganization, liquidation, moratorium, readjustment of debt or
other laws of
general application relating to or affecting the enforcement of
creditors'
rights.
4
<PAGE>
(b)
Except as set forth in the Blue River Disclosure Schedule, neither
the
execution of this Agreement nor consummation of the Transactions:
(i) conflicts
with or violates the organizational documents of Blue River or any
Blue River
Subsidiary; (ii) conflicts with or violates any local, state,
federal or foreign
law, statute, ordinance, rule or regulation (provided that the
approvals of or
filings with applicable government regulatory agencies or
authorities required
for consummation of the Transactions are obtained) or any court
or
administrative judgment, order, injunction, writ or decree; (iii)
conflicts
with, results in a breach of or constitutes a default under any
note, bond,
indenture, mortgage, deed of trust, license, lease, contract,
agreement,
arrangement, commitment or other instrument to which Blue River or
any Blue
River Subsidiary is a party or by which Blue River or any Blue
River Subsidiary
is subject or bound; (iv) results in the creation of or gives any
person,
corporation or entity the right to create any lien, charge, claim,
encumbrance
or security interest, or results in the creation of any other
rights or claims
of any other party (other than Holdings) or any other adverse
interest, upon any
right, property or asset of Blue River or any Blue River
Subsidiary; or (v)
terminates or gives any person, corporation or entity the right to
terminate,
accelerate, amend, modify or refuse to perform under any note,
bond, indenture,
mortgage, agreement, contract, lease, license, arrangement, deed of
trust,
commitment or other instrument to which Blue River or any Blue
River Subsidiary
is bound or with respect to which Blue River or any Blue River
Subsidiary is to
perform any duties or obligations or receive any rights or
benefits.
(c)
No consent, approval, order or authorization of, or
registration,
declaration or filing with a Governmental Authority is required by
Blue River or
any Blue River Subsidiary in connection with the execution and
delivery of this
Agreement and the Transaction Agreements by Blue River or any Blue
River
Subsidiary or the consummation by Blue River or any Blue River
Subsidiary of the
Transactions, except for such applications, filings,
authorizations, orders and
approvals as may be required under HOLA or the regulations of the
OTS.
2.03. Litigation and Pending Proceedings.
(a)
Except as set forth in the Blue River Disclosure Schedule and
lawsuits
involving collection of delinquent accounts as to which no
counterclaims are
asserted against Blue River or any Blue River Subsidiary, there are
no claims,
actions, suits, proceedings, mediations, arbitrations or
investigations pending
(or, to the knowledge of Blue River, threatened) in any court or
before any
government agency or authority, arbitration panel or otherwise (nor
does Blue
River have any knowledge of a reasonable basis for any claim,
action, suit,
proceeding, litigation, arbitration, or investigation) against, by
or affecting
Blue River or any Blue River Subsidiary, including but not limited
to those
which, if successful, would prevent the performance of this
Agreement, declare
the same unlawful or cause the rescission hereof.
(b)
Except as set forth in the Blue River Disclosure Schedule, neither
Blue
River nor any Blue River Subsidiary is: (i) subject to any
outstanding judgment,
order, writ, injunction or decree of any court, arbitration panel
or
governmental agency or authority; (ii) presently charged with or,
to the
knowledge of Blue River, under governmental investigation with
respect to any
actual or alleged violations of any law, statute, rule, regulation
or ordinance;
or (iii) the subject of any pending or, to the knowledge of Blue
River,
threatened proceeding by any government regulatory agency or
authority having
jurisdiction over its respective business, assets, capital,
properties or
operations.
5
<PAGE>
2.04. Broker's, Finder's or Other Fees(a). Except for reasonable
fees of Blue
River's attorneys, accountants, employee benefits consultants and
investment
bankers, no agent, broker or other person acting on behalf of Blue
River or any
Blue River Subsidiary or under any authority of Blue River or any
Blue River
Subsidiary is or shall be entitled to any commission, broker's or
finder's fee
or any other form of compensation or payment from any of the
parties hereto
relating to this Agreement and the Transactions. No action has been
taken by
Blue River that would give rise to any valid claim against any
party hereto for
a brokerage commission, finder's fee or other like payment with
respect to the
Transactions.
2.05. Financial Statements and Reports. The consolidated financial
statements of
Blue River that have been included in Blue River's Annual Report on
Form 10-KSB
for its fiscal year ended December 31, 2005 and its Quarterly
Reports on Form
10-QSB for the quarters ended March 31, 2006 and June 30, 2006 (the
"Blue River
Financial Statements") present fairly the consolidated financial
position,
results of operations, and cash flows of Blue River as of and for
the periods
covered thereby in conformance with GAAP applied on a consistent
basis. All
filings by Blue River with the SEC complied or will comply in all
respects as to
form with the applicable requirements and were and will be true,
accurate and
complete in all respects as of the dates of the filings, and no
such filings
contained or will contain any untrue statement of a material fact
or omitted to
state a material fact necessary in order to make the statements, at
the time and
in the light of the circumstances under which they were made, not
false or
misleading.
2.06. Accuracy of Statements Made and Materials Provided to
Holdings. No
representation, warranty in this Section 2 or other statement made,
or any
information provided, by Blue River or any Blue River Subsidiary in
this
Agreement, the Transaction Agreements or the Blue River Disclosure
Schedule (and
any update thereto), and no written report, statement, list,
certificate,
materials or other written information furnished or to be furnished
by Blue
River or any Blue River Subsidiary to Holdings through and
including the
Effective Time in connection with this Agreement, the Transaction
Agreements or
the Transactions, contains or shall contain any untrue statement of
material
fact or omits or shall omit to state a material fact necessary to
make the
statements contained herein or therein, in light of the
circumstances in which
they are made and in light of the total mix of information known to
Holdings,
not false or misleading.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
For
the purpose of this Agreement, and in relation to Holdings, a
"Material
Adverse Effect on Holdings" means any effect that (i) is material
and adverse to
the financial position, properties, assets, liabilities, results of
operations,
liquidity, or business and future prospects of Holdings as they
existed as of
the date of this Agreement, or (ii) would materially impair the
ability of
Holdings to perform its obligations under this Agreement or under
any of the
Transaction Agreements or otherwise materially threaten or
materially impede the
consummation of the Transactions and the other transactions
contemplated by this
Agreement; provided however, that Material Adverse Effect on
Holdings shall not
be deemed to include the impact of (a) changes in banking and
similar laws of
general applicability or interpretations thereof by courts or
governmental
authorities, (b) changes in GAAP or regulatory accounting
requirements
applicable to banks or savings associations and their holding
companies
generally, (c) any
6
<PAGE>
modifications or changes to valuation policies and practices in
connection with
the Transactions, or restructuring charges taken in connection with
the
Transactions, in each case in accordance with GAAP, (d) effects of
any action
taken with the prior written consent of Blue River, (e) changes in
general
levels of interest rates or conditions or circumstances that affect
the banking
industry, generally, and (f) commencement of a new war or an
escalation of
current wars, armed hostilities or terrorism directly or indirectly
involving
the United States of America.
No
representation or warranty of Holdings contained in this Section 3
shall
be deemed untrue, incomplete or incorrect, and Holdings shall not
be deemed to
have breached any such specified representation or warranty, as a
consequence of
the existence of any fact, event or circumstance unless such fact,
circumstance
or event, individually or taken together with all other facts,
events or
circumstances inconsistent with any representation or warranty
contained in this
Section 3, has had or is reasonably likely to have a Material
Adverse Effect on
Holdings (the "Holdings Disclosure Standard").
Accordingly, Holdings hereby represent and warrant to Blue River,
as of the
date hereof and as of the Effective Time (subject to the Holdings
Disclosure
Standard), as follows:
3.01. Organization and Authority.
(a)
Holdings is a corporation duly organized and validly existing and
in
good standing under the laws of the State of Florida. Holdings has
full power
and authority (corporate and otherwise) to own, operate and lease
its properties
as presently owned, operated and leased and to conduct its business
in the
manner and by the means utilized as of the date hereof. Holdings
does not have a
class of stock registered pursuant to Section 12, and is not
subject to the
reporting requirements, of the 1934 Act. Holdings owns no voting
stock or equity
securities of any other corporation, partnership, association or
other entity.
(b)
Holdings does not have the right to designate a director, officer
or
other management official of (or to consent to changes in
directors, officers or
other management officials, or otherwise exercise any controlling
influence
over) any for-profit or non-profit corporation, partnership,
limited liability
company, joint venture, trust, foundation, or other entity or
association.
3.02. Authorization.
(a)
Holdings has the requisite corporate power and authority to enter
into
this Agreement and to perform its obligations hereunder, subject to
the
fulfillment of the conditions precedent set forth in Section
6.02(d) and (e)
hereof. Holdings is not aware of any reason why the approvals set
forth in
Section 6.02(e) will not be received in a timely manner and without
the
imposition of a condition, restriction or requirement of the type
described in
Section 6.02(e). This Agreement, and its execution and delivery by
Holdings, has
been duly authorized and approved by the Board of Directors of
Holdings and,
assuming due execution and delivery by Blue River, constitutes a
valid and
binding obligation of Holdings, subject to the fulfillment of the
conditions
precedent set forth in Section 6.02 hereof, and is enforceable in
accordance
with its terms, except to the extent limited by general principles
of equity and
public policy and by bankruptcy, insolvency, fraudulent
transfer,
reorganization, liquidation, moratorium,
7
<PAGE>
readjustment of debt or other laws of general application relating
to or
affecting the enforcement of creditors' rights.
(b)
Neither the execution of this Agreement nor consummation of the
Transactions: (i) conflicts with or violates the organizational
documents of
Holdings; (ii) conflicts with or violates any local, state, federal
or foreign
law, statute, ordinance, rule or regulation (provided that the
approvals of or
filings with applicable government regulatory agencies or
authorities required
for consummation of the Transactions are obtained) or any court
or
administrative judgment, order, injunction, writ or decree; (iii)
conflicts
with, results in a breach of or constitutes a default under any
note, bond,
indenture, mortgage, deed of trust, license, lease, contract,
agreement,
arrangement, commitment or other instrument to which Holdings is a
party or by
which Holdings is subject or bound; (iv) results in the creation of
or gives any
person, corporation or entity the right to create any lien, charge,
claim,
encumbrance or security interest, or results in the creation of any
other rights
or claims of any other party (other than Blue River) or any other
adverse
interest, upon any right, property or asset of Holdings; or (v)
terminates or
gives any person, corporation or entity the right to terminate,
accelerate,
amend, modify or refuse to perform under any note, bond, indenture,
mortgage,
agreement, contract, lease, license, arrangement, deed of trust,
commitment or
other instrument to which Holdings is bound or with respect to
which Holdings is
to perform any duties or obligations or receive any rights or
benefits.
(c)
No consent, approval, order or authorization of, or
registration,
declaration or filing with a Governmental Authority is required by
Holdings in
connection with the execution and delivery of this Agreement and
the Transaction
Agreements by Holdings or the consummation by Holdings of the
Transactions,
except for such applications, filings, authorizations, orders and
approvals as
may be required under HOLA or the regulations of the OTS.
3.03. Litigation and Pending Proceedings.
(a)
There are no claims, actions, suits, proceedings, mediations,
arbitrations or investigations pending (or, to the knowledge of
Holdings,
threatened) in any court or before any government agency or
authority,
arbitration panel or otherwise (nor does Holdings have any
knowledge of a
reasonable basis for any claim, action, suit, proceeding,
litigation,
arbitration, or investigation) against, by or affecting Holdings,
including but
not limited to those which, if successful, would prevent the
performance of this
Agreement or the Transaction Agreements, declare the same unlawful
or cause the
rescission hereof.
(b)
Holdings is not: (i) subject to any outstanding judgment, order,
writ,
injunction or decree of any court, arbitration panel or
governmental agency or
authority; (ii) presently charged with or, to the knowledge of
Holdings, under
governmental investigation with respect to any actual or alleged
violations of
any law, statute, rule, regulation or ordinance; or (iii) the
subject of any
pending or, to the knowledge of Holdings, threatened proceeding by
any
government regulatory agency or authority having jurisdiction over
its
respective business, assets, capital, properties or operations.
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3.04. Financing. Holdings has previously disclosed its plans to
Blue River for
the Holdings Financing (as defined in Section 5.01 hereof).
Holdings has no
reason, as of the date hereof, to believe that any conditions to
the Holdings
Financing within Holdings' control will not be satisfied or that
the Holdings
Financing will not be made available to Holdings on the Closing
Date.
3.05. Broker's, Finder's or Other Fees(a). Except for reasonable
fees of
Holdings' attorneys, accountants, employee benefits consultants and
investment
bankers, no agent, broker or other person acting on behalf of
Holdings or under
any authority of Holdings is or shall be entitled to any
commission, broker's or
finder's fee or any other form of compensation or payment from any
of the
parties hereto relating to this Agreement and the Transactions. No
action has
been taken by Holdings that would give rise to any valid claim
against any party
hereto for a brokerage commission, finder's fee or other like
payment with
respect to the Transaction.
3.06. Accuracy of Statements Made and Materials Provided to Blue
River(a). No
representation, warranty in this Section 3 or other statement made,
or any
information provided, by Holdings in this Agreement or the
Transaction
Agreements, and no written report, statement, list, certificate,
materials or
other written information furnished or to be furnished by Holdings
to Blue River
through and including the Effective Time in connection with this
Agreement, the
Transaction Agreements or the Transactions, contains or shall
contain any untrue
statement of material fact or omits or shall omit to state a
material fact
necessary to make the statements contained herein or therein, in
light of the
circumstances in which they are made and in light of the total mix
of
information known to Blue River, not false or misleading.
SECTION 4
COVENANTS OF BLUE RIVER
Blue
River covenants and agrees with Holdings as follows:
4.01. [Intentionally Omitted].
4.02. Bank Regulatory Approvals and Actions.
(a)
Blue River shall have primary responsibility for the
preparation,
filing and costs of all bank regulatory applications required for
consummation
of the P&A Transaction. Blue River shall file all such
applications with respect
to the P&A Transaction as soon as practicable after the
execution of this
Agreement. Blue River shall provide to Holdings and its legal
counsel a
reasonable opportunity to review such applications prior to their
filing and
shall provide to Holdings and its legal counsel copies of all
applications filed
and copies of all material written communications with all state
and federal
bank regulatory agencies relating to such applications. Blue River
shall proceed
expeditiously, cooperate fully and use its reasonable efforts to
procure, upon
terms and conditions reasonably acceptable to Blue River and
Holdings, all
consents, authorizations, approvals, registrations and
certificates, to complete
all filings and applications and to satisfy all other requirements
prescribed by
law which are necessary for consummation of the Transactions on the
terms and
conditions provided in this Agreement and the Transaction
Agreements at the
earliest possible reasonable date.
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(b)
Blue River will proceed expeditiously, cooperate fully and use
their
reasonable efforts to assist Holdings in procuring upon reasonable
terms and
conditions all consents, authorizations, approvals, registrations
and
certificates, in completing all filings and applications and in
satisfying all
other requirements prescribed by law which are necessary for
consummation of the
Stock Purchase Transaction on the terms and conditions provided in
this
Agreement and the Stock Purchase Agreement at the earliest possible
reasonable
date.
(c)
Any materials or information provided by Blue River and any Blue
River
Subsidiary for use by Holdings in any filing with any state or
federal
regulatory agency or authority shall not contain any untrue or
misleading
statement of material fact and shall not omit to state a material
fact necessary
to make the statements contained therein, in light of the
circumstances in which
they are made, not false or misleading.
4.03. Press Releases. Blue River shall use reasonable efforts (i)
to develop a
joint communications plan with Holdings, (ii) to ensure that all
press releases
and other public statements with respect to the Transactions shall
be consistent
with such joint communications plan, and (iii) except in respect of
any
announcement required by applicable law or by obligations pursuant
to any
listing agreement with or rules of NASDAQ, to consult with Holdings
before
issuing any press release or, to the extent practical, otherwise
making any
public statement with respect to this Agreement or the
Transactions. In addition
to the foregoing, Blue River shall not issue any press release or
otherwise make
any public statement or disclosure concerning Holdings, their
respective
business, financial condition or results of operations without the
consent of
Holdings, which consent shall not be unreasonably withheld or
delayed.
4.04. Blue River Disclosure Schedule Update. Blue River shall
promptly
supplement, amend and update, upon the occurrence of any change
prior to the
Effective Time, and as of the Effective Time, the Blue River
Disclosure Schedule
with respect to any matters or events hereafter arising which, if
in existence
or having occurred as of the date of this Agreement, would have
been required to
be set forth or described in the Blue River Disclosure Schedule or
this
Agreement and including, without limitation, any fact which, if
existing or
known as of the date hereof, would have made any of the
representations or
warranties of Blue River contained herein incorrect, untrue or
misleading. No
such supplement, amendment or update shall become part of the Blue
River
Disclosure Schedule unless Holdings shall have first consented in
writing with
respect thereto.
4.05. [Intentionally Omitted].
4.06. Adverse Actions. Blue River shall not, and cause the Blue
River
Subsidiaries not to, knowingly take any or inaction that is
intended or is
reasonably likely to result in (i) any of its representations and
warranties set
forth in this Agreement or any of the Transaction Agreements being
or becoming
untrue, subject to the Blue River Disclosure Standard, in any
respect at any
time at or prior to the Effective Time, (ii) any of the conditions
to the
Transactions set forth in Section 6 not being satisfied, (iii) a
material
violation of any provision of this Agreement or any Transaction
Agreement or
(iv) a delay in the consummation of the Transactions except, in
each case, as
may be required by applicable law or regulation.
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SECTION 5
COVENANTS OF HOLDINGS
Holdings covenants and agrees with Blue River as follows:
5.01. Holdings Financing. Holdings shall proceed expeditiously and
in good faith
to obtain the necessary financing related to the Stock
Consideration and in
order to achieve at Holdings and Paramount (following the Effective
Time)
regulatory capital levels and ratios on a pro forma basis as
reasonably may be
required by the OTS or the FDIC (the "Required Regulatory Capital")
on terms and
conditions reasonably acceptable to Holdings (the "Holdings
Financing").
5.02. Bank Regulatory Approvals and Actions.
(a) Holdings shall
have primary responsibility for the preparation, filing
and costs of all bank regulatory applications required for
consummation of the
Stock Purchase. Holdings shall file all such applications with
respect to the
Stock Purchase as soon as practicable after the execution of this
Agreement.
Holdings shall provide to Blue River and its legal counsel a
reasonable
opportunity to review such applications prior to their filing and
shall provide
to Blue River and its legal counsel copies of all applications
filed and copies
of all material written communications with all state and federal
bank
regulatory agencies relating to such applications. Holdings shall
proceed
expeditiously, cooperate fully and use its reasonable efforts to
procure, upon
terms and conditions reasonably acceptable to Blue River and
Holdings, all
consents, authorizations, approvals, registrations and
certificates, to complete
all filings and applications and to satisfy all other requirements
prescribed by
law which are necessary for consummation of the Stock Purchase
Transaction at
the earliest possible reasonable date.
(b)
Any materials or information provided by Holdings for use by Blue
River
or any Blue River Subsidiary in any filing with any state or
federal regulatory
agency or authority shall not contain any untrue or misleading
statement of
material fact and shall not omit to state a material fact necessary
to make the
statements contained therein, in light of the circumstances in
which they are
made, not false or misleading.
5.03. Press Releases. Holdings shall use reasonable efforts (i) to
develop a
joint communications plan with Blue River, (ii) to ensure that all
press
releases and other public statements with respect to the
Transactions shall be
consistent with such joint communications plan, and (iii) to
consult with Blue
River before issuing any press release or, to the extent practical,
otherwise
making any public statement with respect to this Agreement or the
Transactions;
provided, however, that nothing in this Section 5.03 shall prohibit
Holdings
from making any announcement required by applicable law. In
addition to the
foregoing, Holdings shall not issue any press release or otherwise
make any
public statement or disclosure concerning Blue River and its
business, financial
condition or results of operations without the consent of Blue
River which
consent shall not be unreasonably withheld or delayed.
5.04. [Intentionally Omitted].
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<PAGE>
5.05. Adverse Actions. Holdings shall not knowingly take any or
inaction that is
intended or is reasonably likely to result in (i) any of its
representations and
warranties set forth in this Agreement or any of the Transaction
Agreements
being or becoming untrue, subject to the Holdings Disclosure
Standard, in any
respect at any time at or prior to the Effective Time, (ii) any of
the
conditions to the Transactions set forth in Section 6 not being
satisfied, (iii)
a material violation of any provision of this Agreement or any
Transaction
Agreement or (iv) a delay in the consummation of the Transactions
except, in
each case, as may be required by applicable law or regulation.
SECTION 6
CONDITIONS PRECEDENT TO THE TRANSACTIONS
6.01. Blue River. The obligations of Blue River to consummate the
Transactions
are subject to the satisfaction and fulfillment of each of the
following
conditions on or prior to the Closing Date, unless waived in
writing by Blue
River:
(a)
Representations and Warranties at Closing Date. Each of the
representations and warranties of Holdings contained in this
Agreement and the
Transaction Agreements shall, subject to the Holdings Disclosure
Standard, be
true and correct at and as of the Closing Date (unless such
representation and
warranty specifically speaks as of any other time, in which event
such
representation and warranty shall be true and correct as of such
other time) as
though such representations and warranties had been made or given
on and as of
the Closing Date and Blue River shall have received a certificate
signed on
behalf of Holdings by the Chief Executive Officer and the Chief
Financial
Officer of Holdings to such effect.
(b)
Covenants. Each of the covenants and agreements of Holdings shall
have
been fulfilled or complied with in all material respects from the
date of this
Agreement through the Closing Date, and Blue River shall have
received a
certificate signed on behalf of Holdings by the Chief Executive
Officer and the
Chief Financial Officer of Holdings to such effect.
(c)
Deliveries at Closing. Blue River shall have received from Holdings
at
the Closing (as hereinafter defined) the items and documents, in
form and
content reasonably satisfactory to Blue River, set forth in Section
8.02(b)
hereof.
(d)
Consents. Blue River or the Blue River Subsidiaries have received
any
third party consents necessary to effect the P&A
Transaction.
(e)
Regulatory A
