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AMENDMENT TO PURCHASE AND
ASSUMPTION AGREEMENT
This
Amendment to Purchase and Assumption Agreement
(“Amendment”) is dated as of the 13 th day
of May, 2008, by and among Citrus Bank, National Association
(“Citrus”), CIB Marine Bancshares, Inc.
(“CIB” and collectively with Citrus, the
“Sellers”), 1 st United Bank
(“Purchaser”) and l st United Bancorp, Inc.
(“Parent”).
RECITALS
WHEREAS,
Sellers and Purchaser are parties to that certain Purchase and
Assumption Agreement, dated as of April 3, 2008 (the
“Purchase Agreement”), and desire to amend the Purchase
Agreement in certain respects more fully described hereinafter;
and
WHEREAS,
terms not otherwise defined herein shall have the meanings assigned
to such terms in the Purchase Agreement.
NOW
THEREFORE, in consideration of the mutual promises set forth herein
and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties agree as
follows:
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1.
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The following definitions shall be added to
Section 1.1 of the Agreement:
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“
Common Stock ” shall mean the common stock, par value
$.01 per share, of Parent, with a stipulated price per share of
$11.00 for purposes of value and exchange in this Agreement. If the
Parent declares a stock dividend or effects a reclassification,
recapitalization, split-up, combination, exchange of shares or
similar transaction between the date of this Agreement and the
Closing Date, the stipulated value for the Common Stock shall be
appropriately adjusted for the purposes of this definition to
reflect the portion of the Purchase Price payable in Common Stock
as set forth in Section 3.1(a).
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“
Earnout Amount ” shall have the meaning set forth in
Section 3.6.
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“
Earnout Determination Dates ” shall mean the first and
second anniversaries of the Closing Date.
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“
Parent ” shall mean 1 st United Bancorp,
Inc.
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2.
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The schedule of Excluded Loans
previously attached on Schedule l.l(i) to the Agreement is
hereby deleted in its entirety and replaced with the revised
Schedule l.l(i) attached hereto. Prior to the Closing Date,
the Purchaser may elect to purchase any of the Excluded Loans
appearing on the schedule, in which case any such Excluded Loans
shall be added to the Loans schedule prior to the Closing Date;
provided, however, that the Sellers’ consent shall be
required for the purchase of any charged-off loans by Purchaser.
Schedule 1.1(i) may only be amended after the date hereof
upon the prior written consent of Purchaser and Sellers.
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3.
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Section 3.1(a) of the Agreement is amended to
read as follows:
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(a)
A premium for the Deposit Liabilities equal to $4,500,004, of which
$3,000,000 will be payable in cash and $1,500,004 will be payable
in the form of Common Stock of Parent, in an amount equal to
136,364 shares based on the stipulated price per share of $11.00,
plus an Earnout Amount of up to $l,500,000 as provided
in
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Section 3.6 of this Agreement, less the amount by
which the Real Property Purchase Price exceeds the net book value
of the Real Property (the “Premium”); PLUS
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4.
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Section 3.5(c) of the Agreement shall be deleted
in its entirety.
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5.
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The following new section is added to Article III
of the Agreement:
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Section
3.6
Earnout Amount.
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(a) The
Premium shall include any amount payable by the Purchaser to the
Sellers pursuant to this Section 3.6. The Purchaser shall pay to
the Sellers up to an aggregate of $1,500,000 based on the aggregate
amount of Deposit Liabilities acquired by Purchaser which are
booked to any branch of Purchaser as of the Earnout Determination
Dates (the “Earnout Amount”). The Earnout Amount will
be calculated as follows:
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If the aggregate Deposit
Liabilities are at least:
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On the following Earnout
Determination Date:
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Then the Earnout Amount
will be:
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$77,000,000
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The
first anniversary of the Closing Date
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$750,000
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$72,000,000
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$500,000
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$69,000,000
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$250,000
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$70,000,000
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The
second anniversary of the Closing Date
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$750,000
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$65,000,000
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$500,000
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$60,000,000
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$250,000
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(b) Within
thirty (30) days following the Earnout Determination Dates, the
Purchaser will deliver to the Sellers a certificate, signed by an
officer of Purchaser, certifying as to the amount of Deposit
Liabilities which are booked to any branch of Purchaser and the
determination of the Earnout Amount. The Purchaser will grant the
Sellers reasonable access to all books, records and other data
related to the Deposit Liabilities during regular business hours
upon reasonable prior notice for the purpose of verifying the
determination of the Earnout Amount. Subject to the resolution of
any disputed amount, the Earnout Amount will be paid by the
Purchaser to Sellers not later than sixty (60) days following the
Earnout Determination Dates. The Sellers shall, within ten (10)
days after delivery of the certificate, notify the Purchaser in
writing of any disagreement with the calculation of the Earnout
Amount, and upon agreement by the Purchaser regarding the
Sellers’ requested adjustment, an appropriate adjustment to
the Earnout Amount shall be made thereto. If the Purchaser does not
agree to any such adjustment within ten (10) days after receipt of
Sellers’ notice, then the portion of the Earnout Amount (if
any) that is not subject to any dispute shall be paid as scheduled,
and the disputed elements shall be submitted to binding resolution
by a nationally recognized independent accounting firm agreed to by
the Purchaser and the Sellers. Any remaining Earnout Amount will be
paid by the Purchaser to the Sellers promptly after the independent
accountant’s determination.
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(c) For
purposes of determining the Earnout Amount, Purchaser shall use
reasonable be
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