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Exhibit 10.1
STOCK PURCHASE AND SALE AGREEMENT
BY AND AMONG
PCBA ACQUISITION, LLC,
PREMIER COMMERCIAL BANK ARIZONA, N.A.,
AND
PREMIER COMMERCIAL BANCORP
As of March 1, 2007
EXHIBIT INDEX
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Exhibit A
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Form of Agreement with Option Holders
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SCHEDULE INDEX
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Schedule 1.1(h)
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List of Options
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Schedule 3.2
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No Conflicts
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Schedule 3.4
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Call Reports of PCB Arizona
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Schedule 3.8
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Undisclosed Liabilities; Adverse
Changes
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Schedule 3.11
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Proceedings and Orders
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Schedule 3.12
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Absence of Certain Changes and Events
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Schedule 3.13
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Properties, Contracts, Employee Benefit Plans and
Other Agreements
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Schedule 3.15
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No Defaults
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Schedule 3.16
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Insurance
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Schedule 3.17
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Compliance With Environmental Laws
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Schedule 4.2
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Required Regulatory Consents, Approvals and
Notices
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Schedule 7.10
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List of Option Holders
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STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this " Agreement
") is entered into as of March 1, 2007, by and among PCBA
ACQUISITION, LLC , an Arizona limited liability company ("
Buyer "), PREMIER COMMERCIAL BANK ARIZONA, N.A. , a
national banking association (" PCB Arizona "), and
PREMIER COMMERCIAL BANCORP , a California corporation ("
Bancorp "). Buyer, PCB Arizona and Bancorp referred to
collectively as the "parties" and individually as a "party."
RECITALS
A.
PCB Arizona is a national bank organized and existing under the
laws of the United States and has its principal office and place of
business located in the City of Mesa, County of Maricopa in the
State of Arizona.
B.
Buyer is an Arizona limited liability company formed for the
purpose of acquiring certain shares of common stock of PCB
Arizona.
C.
As of the date of this Agreement, Steven Ellsworth ("
Ellsworth ") and Kevin Stevenson (" Stevenson ") are
the managers and sole members of Buyer.
D
.
Ellsworth and Stevenson have been executive officers of PCB
Arizona, were instrumental in the organization of PCB Arizona, and,
while so employed, were intimately knowledgeable about the business
affairs and business plans of PCB Arizona.
E.
As of the date hereof, PCB Arizona has 1,102,750 shares of issued
and outstanding common stock (the " Bank Stock "), of which
Bancorp owns, directly or beneficially, 954,000 shares (the "
Acquired Shares "), Ellsworth owns, directly or
beneficially, 93,750 shares, and Stevenson owns, directly or
beneficially, 55,000 shares.
F.
The parties to this Agreement desire to effect a transaction
whereby Buyer will acquire the Acquired Shares from Bancorp (the "
Acquisition ") for the purchase price set forth below.
G.
The parties wish to set forth certain other agreements among
them.
AGREEMENTS
In consideration of the foregoing premises and the mutual
promises, covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1
Definitions . In addition to those terms defined
throughout this Agreement, the following terms, when used herein,
shall have the following meanings.
(a)
" Affiliate " means with respect to a particular Person, any
other Person that directly or indirectly controls, is directly or
indirectly controlled by, or is directly or indirectly under common
control with such specified Person.
(b)
" Best Efforts " means using all due speed that a prudent
Person desirous of achieving a result would use in similar
circumstances to ensure that such result is achieved as promptly
and expeditiously as possible, provided, however , that an
obligation to use Best Efforts under this Agreement does not
require the Person subject to that obligation to take actions that
would result in a materially adverse change in the benefits to such
Person of this Agreement and the Acquisition.
(c)
" Business Day " means any day except Saturday, Sunday and
any day on which PCB Arizona is authorized or required by law or
other government action to close.
(d)
" Contract " means any agreement, contract, obligation,
promise or understanding (whether written or oral and whether
express or implied) that is legally binding.
(e)
" Knowledge " with respect to:
(i)
an individual means that such person will be deemed to have
"Knowledge" of a particular fact or other matter if such individual
is actually aware of such fact or other matter; and
(ii)
a Person (other than an individual) means that such Person will be
deemed to have "Knowledge" of a particular fact or other matter if
any individual who is serving as a director or officer or manager
of such Person (or in any similar capacity) has Knowledge of such
fact or other matter.
(f)
" Legal Requirement " means any material federal, state,
local, municipal, foreign, international, multinational or other
administrative order, constitution, law, ordinance, principle of
common law, regulation, statute or treaty, including without
limitation the United States banking laws, rules and regulations
and the banking laws, rules and regulations of the State of
Arizona.
(g)
" Material Adverse Effect " means any change in or effect on
the business of PCB Arizona that would be materially adverse to the
business, financial condition or results of operations of PCB
Arizona, other than any change, effect, event or occurrence to the
extent arising from or relating to (i) the United States or
the banking industry in general, (ii) actions taken pursuant
to the obligations of the parties expressly set forth in this
Agreement or (iii) general economic conditions.
(h)
" Options " means all of the existing Options to acquire PCB
Arizona common stock, as identified on Schedule 1.1(h) .
(i)
" Order " means any award, decision, directive, injunction,
judgment, memorandum, order, regulatory agreement, ruling, subpoena
or verdict entered, issued, made or rendered by any court,
administrative or other governmental agency, including any
Regulatory Authority, or by any arbitrator.
(j)
" Person " means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association,
organization, labor union or other entity or any Regulatory
Authority.
(k)
" Proceeding " means any action, arbitration, audit,
hearing, investigation, litigation or suit (whether civil,
criminal, administrative, investigative or informal) commenced,
brought, conducted or heard by or before, or otherwise involving,
any judicial or governmental authority, including a Regulatory
Authority, or arbitrator.
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(l)
" Regulatory Authorities " means any federal, state or local
governmental body, agency or authority which under applicable
statutes and regulations: (i) has supervisory, judicial,
administrative, police, taxing or other power or authority over PCB
Arizona or Buyer; (ii) is required to approve, or give its
consent to the Acquisition; or (iii) with which a filing must
be made in connection therewith, including in any case, the Board
of Governors of the Federal Reserve System, the Office of the
Comptroller of the Currency (" OCC ") and the Federal
Deposit Insurance Corporation (" FDIC ").
(m) "
Tax " means any tax (including any income tax, capital gains
tax, value-added tax, sales tax, property tax, gift tax or estate
tax), levy, assessment, tariff, duty (including any customs duty),
deficiency or other fee, and any related charge or amount
(including any fine, penalty, interest or addition to tax),
imposed, assessed or collected by or under the authority of any
Regulatory Authority or payable pursuant to any tax-sharing
agreement or any other Contract relating to the sharing or payment
of any such tax, levy, assessment, tariff, duty, deficiency or
fee.
(n)
" Tax Return " means any return (including any information
return), report, statement, schedule, notice, form or other
document or information filed with or submitted to, or required to
be filed with or submitted to, any Regulatory Authority in
connection with the determination, assessment, collection or
payment of any Tax or in connection with the administration,
implementation or enforcement of or compliance with any Legal
Requirement relating to any Tax.
(o)
" Threatened " means a claim, Proceeding, dispute, action or
other matter for which any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in
writing).
Section 1.2
Principles of Construction . (a) In this Agreement,
unless otherwise stated or the context otherwise requires, the
following uses apply: (i) actions permitted under this
Agreement may be taken at any time and from time to time in the
actor’s sole discretion; (ii) references to a statute
shall refer to the statute and any successor statute, and to all
regulations promulgated under or implementing the statute or
successor, as in effect at the relevant time; (iii) in
computing periods from a specified date to a later specified date,
the words "from" and "commencing on" (and the like) mean "from and
including," and the words "to," "until" and "ending on" (and the
like) mean "to, but excluding"; (iv) references to a
governmental or quasi-governmental agency, authority or
instrumentality shall also refer to a regulatory body that succeeds
to the functions of the agency, authority or instrumentality;
(v) indications of time of day mean Phoenix, Arizona time;
(vi) "including" means "including, but not limited to";
(vii) all references to sections, schedules and exhibits are
to sections, schedules and exhibits in or to this Agreement unless
otherwise specified; (viii) all words used in this Agreement
will be construed to be of such gender or number as the
circumstances require; and (ix) the captions and headings of
articles, sections, schedules and exhibits appearing in or attached
to this Agreement have been inserted solely for convenience of
reference and shall not be considered a part of this Agreement nor
shall any of them affect the meaning or interpretation of this
Agreement or any of its provisions.
(b)
The Appendix, Exhibits and Schedules referred to in this Agreement
consist of the Appendix, Exhibits and Schedules attached to this
Agreement immediately following the signature page of this
Agreement, and such Appendix, Exhibits and Schedules are
incorporated by reference into this Agreement as if they were set
forth in their entirety herein. Such Schedules only contain
information regarding PCB Arizona which was provided to Buyer a
reasonable period of time prior to the date of this
Agreement. The parties shall evidence their respective review
of the Schedules by initialing each Schedule.
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(c)
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles as consistently applied in the United States ("
GAAP ").
ARTICLE 2
BASIC TERMS OF TRANSACTION
Section 2.1
The Transaction . Upon the terms, subject to the
conditions and in reliance upon the representations and warranties
herein made by the parties to each other, Bancorp shall sell,
transfer, convey and deliver to Buyer and Buyer shall purchase from
Bancorp, all of the Acquired Shares.
Section 2.2
Effective Time . The closing of the Acquisition ("
Closing ") shall occur on August 1, 2007 (the " Closing
Date "), at such time and place as the parties shall mutually
agree. The Acquisition shall be effective upon the receipt of
all required approvals or consents of the Regulatory Authorities
for the Acquisition, and the expiration of all statutory waiting
periods relating to such approvals (the "Effective Time
"). The parties agree to use their Best Efforts to cause the
Closing to occur as soon as possible after the date of this
Agreement.
Section 2.3
Purchase Price; Shareholders’ Equity .
(a) The aggregate purchase price (" Purchase Price ")
of the Acquired Shares shall be $11,000,000. The parties
agree that in the event Buyer shall have paid either or both of the
First Extension Deposit and the Second Extension Deposit, pursuant
to Section 8.5 of this Agreement, then such payments shall be
credited against the Purchase Price at Closing. After the
Closing, Bancorp will have no further rights in respect of the
Acquired Shares except to receive the Purchase Price as provided in
this Section 2.3.
(b)
The parties agree that as of the Closing Date, the book value of
the Bank Stock (the " Shareholder Equity ") shall be not
less than $9,000,000, independent of any stock options or warrants
outstanding immediately prior to the Closing Date. The
Shareholder Equity shall be calculated pursuant to generally
accepted accounting principles, and shall be verified by an
independent third party mutually agreeable to all parties, which
could include the certified public accountants for PCB
Arizona. In the event the Shareholder Equity is below
$9,000,000 as of the Closing Date, the Purchase Price for the
Acquired Shares shall be reduced on a dollar for dollar basis by
the amount by which the Shareholder Equity of PCB Arizona is below
$9,000,000.
Section 2.4
Options and Warrants . Subject to Section 7.10,
upon the Closing, all stock options of PCB Arizona, other than
those held by Ellsworth and Stevenson, shall be cancelled with no
liability to PCB Arizona. All stock options of Ellsworth and
Stevenson will remain in place and shall be the responsibility of
PCB Arizona from and after the Closing. In the event the
Acquisition is terminated, all options and warrants to Ellsworth
and Stevenson shall terminate immediately with no further liability
to PCB Arizona or Bancorp.
Section 2.5
Buyer’s Deliveries at Closing . At the
Closing, Buyer shall deliver the following items to Bancorp:
(a)
evidence of the deposit by Buyer with a federal deposit insured
banking institution with shareholder equity in excess of $20
million of the Purchase Price;
(b)
a certificate executed by the President or any Vice President and
the Secretary or any Assistant Secretary of Buyer dated the Closing
Date stating that: (i) all of the representations and
warranties of Buyer set forth in this Agreement are true and
correct with the same force and effect as if
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all of such representations and warranties were
made at the Closing Date, provided, however, that to the
extent such representations and warranties expressly relate to an
earlier date, such representations shall be true and correct in all
material respects on and as of such earlier date, and provided
further , that to the extent that such representations and
warranties are made in this Agreement subject to a standard of
materiality or Knowledge, such representations and warranties shall
be true and correct in all respects; and (ii) Buyer has
performed or complied with all of the covenants and obligations to
be performed or complied with by it under the terms of this
Agreement on or prior to the Closing Date, provided,
however, that to the extent performance and compliance with
such covenants and obligations are subject in this Agreement to a
standard of materiality, and also with respect to the performance
by Buyer of the covenant to pay the Purchase Price, Buyer shall
have performed and complied in all respects with such covenants and
obligations;
(c)
copies of resolutions of the members and managers of Buyer
authorizing and approving this Agreement and the consummation of
the transactions contemplated hereby; and
(d)
such other documents as PCB Arizona may reasonably request.
All of such items shall be reasonably satisfactory in form and
substance to Bancorp and its counsel.
Section 2.6
Bancorp’s Deliveries at Closing . At the
Closing, Bancorp shall deliver the following items to Buyer:
(a)
certificates representing the Acquired Stock, duly endorsed in
blank by the holder thereof;
(b)
a certificate executed by the Chairman or President of Bancorp
stating that: (i) all of the representations and
warranties of Bancorp and PCB Arizona set forth in this Agreement
are true and correct with the same force and effect as if all of
such representations and warranties were made at the Closing Date,
provided, however, that to the extent such representations
and warranties expressly relate to an earlier date, such
representations shall be true and correct in all material respects
on and as of such earlier date, and provided further , that
to the extent that such representations and warranties are made in
this Agreement subject to a standard of materiality or Knowledge,
such representations and warranties shall be true and correct in
all respects; and (ii) each of Bancorp and PCB Arizona have
performed and complied with all of the covenants and obligations to
be performed or complied with by it under the terms of this
Agreement on or prior to the Closing Date, provided,
however, that to the extent performance and compliance with
such covenants and obligations are subject in this Agreement to a
standard of materiality, each of Bancorp and PCB Arizona shall have
performed and complied in all respects with such covenants and
obligations;
(c)
copies of resolutions of the board of directors of Bancorp and PCB
Arizona, as applicable, authorizing and approving this Agreement
and the consummation of the transactions contemplated hereby,
certified as of the Closing Date by the Secretary or any Assistant
Secretary of Bancorp and PCB Arizona, as applicable;
(d)
a legal opinion of Bancorp’s counsel dated the Closing Date
opining as to due authorization, enforceability and other matters
of a similar nature; and
(e)
such other documents as Buyer may reasonably request.
All of such items shall be reasonably satisfactory in form and
substance to Buyer and its counsel.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BANCORP AND PCB
ARIZONA
Bancorp and PCB Arizona hereby represents and warrants to Buyer
as follows:
Section 3.1
Authorization; Enforceability . Each of Bancorp
and PCB Arizona has the requisite power and authority to enter into
and perform its obligations under this Agreement and the execution,
delivery and performance of this Agreement by each of Bancorp and
PCB Arizona, and the consummation by it of its respective
obligations under this Agreement, have been authorized by all
necessary actions of any kind whatsoever (except for approval of
the Acquisition and this Agreement by its stockholders) and this
Agreement constitutes a legal, valid and binding obligation of each
of Bancorp and PCB Arizona enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other laws and subject to general
principles of equity.
Section 3.2
No Conflict . Except as set forth in Schedule
3.2 , neither the execution nor the delivery of this Agreement
nor the consummation or performance of the Acquisition will,
directly or indirectly (with or without notice or lapse of
time): (a) contravene, conflict with, or result in a
violation of any provision of the charter or bylaws of either
Bancorp or PCB Arizona; (b) contravene, conflict with or
result in a violation of, or give any Regulatory Authority the
bona fide right to challenge the Acquisition or to exercise
any remedy or obtain any relief under, any Legal Requirement or
Order to which either Bancorp, PCB Arizona, or any of the assets
owned or used by Bancorp or PCB Arizona, respectively, may be
subject; (c) contravene, conflict with, or result in a
violation or breach of any provision of, or give any Person the
valid right to declare a default or exercise any remedy under, or
to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any Contract where the same would have a
Material Adverse Effect; or (d) result in the creation of any
lien, charge or encumbrance upon or with respect to any of the
assets owned or used by Bancorp or PCB Arizona. Neither
Bancorp nor PCB Arizona will be required to give any notice to or
obtain any consent from any Person in connection with the execution
and delivery of this Agreement or the consummation of the
Acquisition.
Section 3.3
Bank Capitalization . The authorized capital stock
of PCB Arizona consists, and immediately prior to the Closing will
consist, exclusively of 1,102,750 shares of common stock, all of
which shares are, and immediately prior to the Closing will be,
duly authorized, validly issued and outstanding, fully paid and
nonassessable. There are no unexpired or pending preemptive
rights with respect to any shares of capital stock of PCB
Arizona. Other than the stock options and warrants that are
to be cancelled pursuant to Section 2.4 of this Agreement, there
are no outstanding securities of PCB Arizona which are convertible
into or exchangeable for any shares of PCB Arizona’s capital
stock, and PCB Arizona is not a party to any Contract relating to
the issuance, sale or transfer of any equity securities or other
securities of PCB Arizona. None of the issued and outstanding
shares of PCB Arizona’s capital stock was issued in violation
of any federal or state securities laws or any other Legal
Requirement. PCB Arizona does not own or have any Contract to
acquire, any equity securities or other securities of any Person or
any direct or indirect equity or ownership interest in any other
business.
Section 3.4
Call Reports . True, correct and complete copies
of the following are set forth in Schedule 3.4 :
(a) PCB Arizona’s Report of Condition and Reports of
Income as filed with Regulatory Authorities, for the following
periods: December 31, 2006 (collectively, the " Call Reports
"); and (b) any other reports filed by PCB Arizona, and all
written agreements and understandings in effect or entered into by
PCB Arizona, with any Regulatory Authority since its
inception. The Call Reports have been prepared in accordance
with all Legal Requirements and generally accepted accounting
practices applicable to financial institutions consistently
applied, and each of the Call Reports accurately, fairly
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and correctly presents the financial position,
assets, liabilities and the results of operations of PCB Arizona at
the respective dates and for the respective periods covered by such
Call Reports.
Section 3.5
Books and Records . The books of account, minute
books, stock record books and other records of PCB Arizona are
complete and correct in all material respects and have been
maintained in accordance with all applicable Legal
Requirements. At the Closing, all of those books and records
will be in the possession of PCB Arizona.
Section 3.6
Title to and Condition of Assets . PCB Arizona
has good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, as reflected on PCB
Arizona’s most recent Call Report, free and clear of all
mortgages, liens, security interests, pledges, charges, claims,
encumbrances and other restrictions of any nature whatsoever
other than: (a) pledges or liens required to be granted
in connection with the acceptance of government deposits, granted
in connection with repurchase or reverse repurchase agreements or
otherwise incurred in the ordinary course of business;
(b) statutory liens for Taxes not yet delinquent or being
contested in good faith by appropriate Proceedings and for which
appropriate reserves have been established and reflected on the
Call Reports; and (c) minor defects and irregularities in
title and encumbrances that would not have a Material Adverse
Effect,. All real property and fixed assets (whether owned or
leased) utilized in and material to the conduct of the business of
PCB Arizona are in good condition and repair, free from structural
defects, subject to ordinary wear and tear and such minor defects
as will not impair their continued normal use.
Section 3.7
Loan Loss Reserve . To Bancorp’s and PCB
Arizona’s Knowledge: (a) PCB Arizona’s
reserve for possible loan and lease losses is adequate in all
material respects under the standards applied by applicable
Regulatory Authorities and based upon generally accepted accounting
practices applicable to financial institutions to provide for
possible or specific losses, net of recoveries relating to loans
previously charged off; (b) none of PCB Arizona’s loans
is subject to any material offset or claim of offset; and
(c) the aggregate loan balances in excess of PCB
Arizona’s reserve for loan and lease losses are, based on
past loan loss experience, collectible in accordance with their
terms and all uncollectible loans have been charged off.
Section 3.8
Undisclosed Liabilities; Adverse Changes . PCB
Arizona has no liabilities or obligations of any nature (whether
known or unknown and whether absolute, accrued, contingent, or
otherwise) except: (a) as set forth in
Schedule 3.8 ; (b) for liabilities or obligations
reflected or reserved against in the Call Reports; and (c) for
current liabilities incurred in the ordinary course of business
since the respective dates of the Call Reports. Since the
date of the latest Call Report, there has been no occurrence that
would have a Material Adverse Effect.
Section 3.9
Taxes . PCB Arizona has duly filed or will duly
file all Tax Returns required to be filed by it for all periods
prior to the Closing Date, and each such Tax Return is complete and
accurate in all material respects. PCB Arizona has paid, or
made adequate provision for the payment of, all Taxes (whether or
not reflected in Tax Returns as filed or to be filed) due and
payable by PCB Arizona, or claimed to be due and payable by any
Regulatory Authority, and is not delinquent in the payment of any
Tax, except such Taxes as are being contested in good faith and as
to which adequate reserves have been provided. There is no
claim or assessment pending or Threatened against PCB Arizona for
Taxes owed by PCB Arizona. No audit, examination or
investigation related to PCB Arizona is presently being conducted
or Threatened by any Regulatory Authority.
Section 3.10
Compliance with Law . PCB Arizona is, and at all
times since its inception has been, in material compliance with
each Legal Requirement that is or was applicable to it or to the
conduct or operation of its business or the ownership or use of any
of its assets. No event has occurred or circumstance exists
that (with or without notice or lapse of time): (a) may
constitute or result in a
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violation by PCB Arizona of, or a failure on the
part of PCB Arizona to comply with, any Legal Requirement; or
(b) may give rise to any obligation on the part of PCB Arizona
to undertake, or to bear all or any portion of the cost of, any
remedial action of any nature, and in the case of either clause (a)
or (b) would have a Material Adverse Effect. PCB Arizona has
not received, at any time since its inception, any notice or other
communication (whether oral or written) from any Regulatory
Authority or any other Person regarding: (x) any actual,
alleged, possible or potential violation of, or failure to comply
with, any Legal Requirement; or (y) any actual, alleged,
possible or potential obligation on the part of PCB Arizona to
undertake, or to bear all or any portion of the cost of, any
remedial action of any nature, where either the occurrence
described in clause (x) or (y) would have a Material Adverse
Effect.
Section 3.11
Proceedings and Orders . Attached as
Schedule 3.11 is a true and correct list of all
material Proceedings and Orders pending, entered into or, to the
Knowledge of PCB Arizona, Threatened against or affecting PCB
Arizona or any of its assets or business, since its inception,
involving any Regulatory Authority or other Person. Except to
the extent indicated in Schedule 3.11 , no such pending
or Threatened Proceeding or Order would, alone or in the aggregate,
have a Material Adverse Effect and there is no fact which would
provide a basis for any Proceeding or Order which would have such
an effect. No officer, director, agent or employee of PCB
Arizona is subject to any Order that prohibits such officer,
director, agent or employee from engaging in or continuing any
conduct, activity or practice relating to the business of PCB
Arizona. PCB Arizona has not received, at any time since its
inception, any notice or other communication (whether oral or
written) from any Regulatory Authority or any other Person
regarding any actual, alleged, possible, or potential violation of,
or failure to comply with, any Legal Requirement to which PCB
Arizona, or any of the assets owned or used by PCB Arizona, is or
has been subject where the same would have a Material Adverse
Effect.
Section 3.12
Absence of Certain Changes and Events . Except as
set forth in Schedule 3.12 or as permitted by this
Agreement, since its inception, PCB Arizona has conducted its
business only in the ordinary course of business and there has not
been with respect to PCB Arizona any:
(a)
change in PCB Arizona’s authorized or issued capital stock;
grant of any stock option or right to purchase shares of capital
stock of PCB Arizona; issuance of any security convertible into
such capital stock or evidences of indebtedness (except in
connection with customer deposits); grant of any registration
rights; purchase, redemption, retirement or other acquisition by
PCB Arizona of any shares of any such capital stock, declaration or
payment of any dividend or other distribution or payment in respect
of shares of PCB Arizona’s capital stock;
(b)
amendment to the charter or bylaws or any resolutions adopted by
the board of directors or the stockholders of PCB Arizona relating
thereto;
(c)
payment or increase by PCB Arizona of any bonuses, salaries or
other compensation to any stockholder, director, officer or
employee (except in the ordinary course of business) or entry into
any employment, severance or similar Contract with any director,
officer or employee;
(d)
adoption, amendment (except for any amendment necessary to comply
with any Legal Requirement) or termination of, or increase in the
payments to or benefits under, any Employee Benefit Plan;
(e)
damage to or destruction or loss of any asset or property of PCB
Arizona, whether or not covered by insurance, where the same would
have a Material Adverse Effect;
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(f)
entry into, termination or extension of, or receipt of notice of
termination of any joint venture or similar agreement, or any
Contract or transaction involving a total remaining commitment by
or to PCB Arizona of at least $5,000;
(g)
material change in any existing lease of real or personal
property;
(h)
sale (other than any sale in the ordinary course of business),
lease or other disposition of any material asset or property of PCB
Arizona or mortgage, pledge or imposition of any lien or other
encumbrance on any material asset or property of PCB Arizona except
for tax and other liens which arise by operation of law and with
respect to which payment is not past due and except for pledges or
liens: (i) required to be granted in connection with the
acceptance by PCB Arizona of government deposits; (ii) granted in
connection with repurchase or reverse repurchase agreements; or
(iii) otherwise incurred in the ordinary course of business;
(i)
incurrence of any obligation or liability (fixed or contingent)
other than in the ordinary course of business;
(j)
cancellation or waiver of any claims or rights with a value to PCB
Arizona in excess of $1,000;
(k)
any investment of a capital nature exceeding $2,500 or aggregate
investments of a capital nature exceeding $10,000;
(l)
merger or consolidation with or into any other Person, or
acquisition of any stock, equity interest or business of any other
Person;
(m)
transaction for the borrowing or loaning of monies, other than in
the ordinary course of business;
(n)
material change in the accounting methods used by PCB Arizona;
or
(o)
agreement, whether oral or written, by PCB Arizona to do any of the
foregoing.
Section 3.13
Properties, Contracts, Employee Benefit Plans and Other
Agreements . Schedule 3.13 lists or
describes the following:
(a)
All real property owned by PCB Arizona and the principal buildings
and structures located thereon, and each lease of real property to
which PCB Arizona is a party;
(b)
each Contract to which PCB Arizona is a party that involves
performance of services or delivery of goods or materials by PCB
Arizona of an amount or value in excess of $2,500;
(c)
except for financing leases made by PCB Arizona in the ordinary
course of business, each lease, rental, license, installment and
conditional sale agreement and other Contract to which PCB Arizona
is a party affecting the ownership of, leasing of, title to, use
of, any personal property with aggregate annual payments of greater
than $2,500;
(d)
except for "shrink wrap" licenses generally applicable in the case
of retail sales of software in the consumer market, each licensing
agreement or other Contract to which PCB Arizona is a party with
respect to patents, trademarks, copyrights, or other intellectual
property (collectively, " Intellectual Property Assets "),
including agreements with current or former employees, consultants,
or
9
contractors regarding the appropriation or the
non-disclosure of any of PCB Arizona’s Intellectual Property
Assets;
(e)
each collective bargaining agreement and other Contract to which
PCB Arizona is a party with any labor union or other employee
representative of a group of employees;
(f)
each joint venture, partnership and other Contract (however named)
to which PCB Arizona is a party involving a sharing of profits,
losses, costs or liabilities by PCB Arizona with any other
Person;
(g)
each Contract to which PCB Arizona is a party containing covenants
that in any way purport to restrict the business activity of PCB
Arizona or any director, officer, employee or stockholder of PCB
Arizona or limit PCB Arizona to engage in any line of business or
to compete with any Person;
(h)
each Contract to which PCB Arizona is a party providing for
payments to or by any Person based on sales, purchases or profits,
other than direct payments for goods;
(i)
any written employment agreement or similar arrangement with any
director, officer, employee or consultant of PCB Arizona;
(j)
each profit-sharing, deferred compensation, bonus, stock ownership,
stock purchase, pension, incentive plan or agreement, retainer,
employment, consulting, retirement, employee welfare or benefit
agreements, plans or arrangements (including vacation, sick leave,
salary continuation, service awards, severance pay, medical,
hospitalization, disability and life insurance) established,
maintained, sponsored or undertaken by PCB Arizona for the benefit
of PCB Arizona’s officers, directors or employees, including
each trust or other agreement with any custodian or any trustee for
funds held under any such agreement, plan or arrangement, and all
other Contracts or arrangements under which pensions, deferred
compensation or other retirement benefits are being paid or may
become payable by PCB Arizona for the benefit of PCB
Arizona’s employees (collectively, the " Employee Benefit
Plans "), and, in respect to any of them, the latest reports or
forms, if any, filed with the Department of Labor and Pension
Benefit Guaranty Corporation under the Employee Retirement Income
Security Act of 1974, as amended (" ERISA "), any current
financial or actuarial reports and any currently effective private
rulings or determination letters from the Internal Revenue Service
obtained by or for the benefit of PCB Arizona;
(k)
each executory Contract entered into other than in the ordinary
course of business that contains or provides for an express
undertaking by PCB Arizona to be responsible for consequential
damages;
(l)
each executory Contract for capital expenditures in excess of
$2,500;
(m) each
written warranty, guaranty or other similar undertaking with
respect to contractual performance extended by PCB Arizona other
than in the ordinary course of business; and
(n)
each amendment, supplement and modification (whether oral or
written) in respect of any of the foregoing.
Copies of each document, plan or Contract listed and described
on Schedule 3.13 will be made available during due
diligence. PCB Arizona agrees to promptly provide Buyer with
copies of any such document, plan or Contract described this
Section 3.13 entered into by PCB Arizona on or after the date of
this Agreement.
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Section 3.14
Employee Benefit Plans . Except as otherwise
set forth on Schedule 3.13 , PCB Arizona is not a party
to, or obligated under, any Employee Benefit Plans. PCB
Arizona has complied with the applicable administrative, reporting
and substantive requirements of ERISA and any other applicable
Legal Requirement with respect to each Employee Benefit Plan where
the failure to so comply would have a Material Adverse Effect.
Section 3.15
No Defaults . Except as set forth in
Schedule 3.15 , each Contract identified or required to
be identified in Schedule 3.13 is in full force and
effect and is valid and enforceable in accordance with its
terms. PCB Arizona is, and at all times since its inception,
has been, in compliance in all material respects with all
applicable terms and requirements of each Contract under which PCB
Arizona has or had any obligation or liability or by which PCB
Arizona or any of the assets owned or used by PCB Arizona is or was
bound. To Bancorp’s and PCB Arizona’s Knowledge,
each other Person that has or had any obligation or liability under
any material Contract under which PCB Arizona has or had any rights
is, and at all times since its inception, has been in compliance in
all material respects with all applicable terms and requirements of
such Contract. To the Knowledge of Bancorp or PCB Arizona, no
event has occurred or circumstance exists that (with or without
notice or lapse of time) may contravene, conflict with, or result
in a violation or breach of, or give PCB Arizona or other Person
the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate,
or modify, any Contract, and where any of the foregoing would have
a Material Adverse Effect. PCB Arizona has not given to or
received from any other Person, at any time since its inception,
any notice or other communication (whether oral or written)
regarding any actual, alleged, possible or potential violation or
breach of, or default under, any material Contract. Other
than in the ordinary course of business in connection with workouts
and restructured loans, there are no renegotiations of, attempts to
renegotiate, or outstanding rights to renegotiate any material
amounts paid or payable to PCB Arizona under current or completed
Contracts with any Person and no such Person has made written
demand for such renegotiation.
Section 3.16
Insurance . Schedule 3.16 lists and
briefly describes the policies of insurance (including bankers
blanket bond and insurance providing benefits for employees) owned
or held by PCB Arizona. Each such policy is, and PCB Arizona
will use its Best Efforts to keep each such policy, in full force
and effect (except for any expiring policy which is replaced by
coverage at least as extensive) until the Closing. All
premiums due on such policies have been paid.
Section 3.17
Compliance with Environmental Laws .
(a) There are no actions, suits, investigations, liabilities,
inquiries, Proceedings or Orders involving PCB Arizona or any of
its assets that are pending or, to the Knowledge of PCB Arizona,
Threatened, nor to the Knowledge of Bancorp or PCB Arizona is there
any factual basis for any of the foregoing, as a result of any
failure of PCB Arizona to comply (or the assertion of liability
even if in compliance) with any Legal Requirements designed to
minimize, prevent, punish or remedy the consequences of actions
that damage or threaten the soil, land surface or subsurface
strata, surface waters (including navigable waters, oceans waters,
streams, ponds, drainage basins and wetlands), groundwaters,
drinking water supply, stream sediments, ambient air (including
indoor air), plant and animal life and any other environmental
medium or natural resource, any of which would have a Material
Adverse Effect.
(b)
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