EXHIBIT
10.1
FIRST AMENDMENT TO
ASSET ACQUISITION
ASSUMPTION
AGREEMENT
THIS FIRST AMENDMENT TO
ASSET ACQUISITION AND ASSUMPTION AGREEMENT dated May 17, 2006
(this “Amendment”) is made and entered into as of
November 17, 2006 by and among Sun American Bancorp, a
Delaware business corporation (“SAB”), Sun American
Bank, a Florida commercial banking association and a wholly-owned
subsidiary of SAB (“SB”) (collectively, SAB and SB are
referred to as the “SAB”) and Beach Bank, a Florida
commercial banking association (“BB”).
BACKGROUND
SAB and BB entered into
that certain Asset Purchase Agreement, dated as of May 17,
2006 (the “Original Agreement”), SAB and BB have agreed
to amend certain of the terms and provisions of the Original
Agreement as more particularly set forth herein. Any capitalized
term set forth herein and not defined herein shall have the meaning
ascribed to such term in the Original Agreement.
AGREEMENT
For good and valuable
consideration in addition to that which is being paid as part of
the Original Agreement, SAB and SB and BB agree as
follows:
1.
Background
.
The provisions
contained in the “Background” section of this Amendment
are true and correct and are incorporated herein by
reference.
2.
Amendments
.
(a)
Deletion of $100,000
Cash Consideration.
(i)
The following sentence
shall be deleted from the definition of Acquisition Transaction
Consideration defined in Article I, Section 1.1 of the
Original Agreement:
“Notwithstanding
anything in this Agreement to the contrary, SAB may elect to pay up
to $100,000 of the Acquisition Transaction Consideration in cash
(the “Cash Consideration”), which shall be delivered to
the Escrow Agent as provided in Section 2.4 hereof and used to
pay certain fees and expenses as provided in the Escrow
Agreement.”
(ii)
Article II,
Section 2.4(b)(i) of the Original Agreement is hereby deleted
and replaced in its entirety by the following provision:
“(i) at Closing,
SAB shall deposit 75% of the SAB Shares (the “Escrow
Amount”) with the Escrow Agent to be distributed in
accordance with the terms of this Agreement and the Escrow
Agreement. The Escrow Amount, as adjusted from time to time, shall
be referred to as the ‘Escrow Fund;’
and”
(b)
$1,000,000 Cash
Holdback.
(i)
Article II,
Section 2.2 (a) of the Original Agreement entitled
“Excluded Assets” is hereby deleted in its entirety and
replaced by the following provision:
“ Excluded
Assets. Neither SB nor SAB shall acquire the following
assets:
(i) the Bank Charter of
BB, (ii) any rights, claims, action, pending or otherwise against
any person or under any policy of insurance relating, directly or
indirectly, to any Regulatory Claim, potential Regulatory Claim or
any other matter which could be the subject of any Regulatory Claim
or similar action, (iii) a sum not to exceed One Million Dollars
($1,000,000) in cash, which sum shall be used by BB to fund the
Liquidating Trust for purposes of paying any payments permitted to
be made by the trustee of the Liquidating Trust and to fund the
payment of sums required by the exercise of any dissenters rights
pursuant to applicable Florida statutes (the “Cash
Holdback”) and (iv) the FDIC Records and Former Customer
Records.”
(ii)
The following provision
is hereby added as Article II, Section 2.2 (c) of the Original
Agreement:
1
“ Cash
Holdback. Notwithstanding anything else contained in this
Agreement, the parties agree that for purposes of this Agreement,
including the calculation of the Acquisition Transaction
Consideration, the Book Value of BB shall not be reduced by the
value of the Cash Holdback; provided, however, that for purposes of
calculating the number of shares of SAB Common Stock to be
delivered
